michael a. bottar, federal tort claims act

A Desktop Guide To Federal Tort Claims Within The United States Court of Appeals For The Second Circuit (2015 ed.)

Michael A. Bottar, Esq. Bottar Leone, PLLC 1600 AXA Tower II 120 Madison Street Syracuse, NY 13202 T: (315) 422 3466 F: (315) 422 4621 [email protected] www.bottarleone.com In and For Upstate New York. Since 1983.

A Desktop Guide to Federal Tort Claims Within the United States Court of Appeals for the Second Circuit Page | 1

©2015 Michael Anthony Bottar, Esq. · Bottar Leone, PLLC · 1600 AXA Tower II · 120 Madison St. · Syracuse, NY 13202 · (315) 422-3466 · bottarleone.com

About the Desktop Guide

The Desktop Guide is a survey of Federal Tort Claims Act cases within the Second Circuit Court of Appeals (primary New York federal courts). It is intended to provide only a starting point for the Bar. Whether by accident or design, case law cited herein is not exhaustive. Further, there may be minority or contrary case law on any given point.

Questions, comments, or concerns, as well as requests for reproduction, should be submitted to the author by email at [email protected].



Table of Contents

I. INTRODUCTION…………………………………………………………. 4

A. History and Summary……………………………………………. 4

II. IDENTIFYING THE GOVERNMENTAL ACTOR……………………... 6

III. THE ADMINISTRATIVE CLAIM……………………………………… 10

A. Exhaustion………………………………………………………… 11 i. Statutory Exemption to Exhaustion – Westfall..………. 13

B. Written Notice…………………………………………………….. 14 i. Format…………………………………………………….. 14 ii. Presentment………………………………………………. 16 iii. Submission By……………………………………………. 17 iv. Essential Contents……………………………………….. 20

a. Adequate Notice………………………………….. 20 b. Sum Certain………………………………………. 24 c. Signed and Dated………………………………... 26

C. Appropriate Agency ……………………………………………... 27 i. Wrong Agency……………………………………………. 28 ii. Multi-Agency Claims……………………………………... 29

D. Agency Requests for Additional Information………………….. 29

E. Statute of Limitations…………………………………………….. 30 i. Accrual…………………………………………………….. 30 ii. Diligence-Discovery ……………………………………... 31

a. Medical Malpractice ……………………………... 31 b. Non-Medical Malpractice……………………….. 32

iii. Continuous Treatment…………………………………… 33 iv. Incompetency…………………………………………….. 33 v. Insanity……………………………………………………. 34 vi. Infancy…………………………………………………….. 34 vii. Ignorance About Government involvement…………… 34

F. Computation of Time……………………………………………. 34 i. Two Years……………………………………………….. 35 ii. Six Months……………………………………………….. 35 iii. Request for Reconsideration………………………….. 36 iv. Withdrawal of Claim…………………………………….. 37 v. Negotiations……………………………………………….. 37 vi. Final Denial……………………………………………….. 37

G. Amendments ……………………………………………………... 38



H. Equitable Tolling…………………………………………………. 38

IV. THE FEDERAL ACTION………………………………………………… 45

A. Elements of Complaint…………………………………………... 45

B. Service…………………………………………………………….. 46

C. Substantive Law………………………………………………….. 46

D. Proper Defendant………………………………………………… 47

E. Supplemental Jurisdiction ……………………………………... 47

F. Scope of Employment…………………………………………… 47

G. Bars to Recovery………………………………………………… 49 i. Discretionary Function and Due Care…………………. 50 ii. FECA………………………………………………………. 50 iii. Feres……………………………………………………… 50 iv. Intentional Torts………………………………………….. 50 v. Strict Liability……………………………………………… 51

H. Prosecution……………………………………………………….. 51

I. Available Damages………………………………………………. 52

V. RESOLUTION……………………………………………………………. 53

A. Settlement Authority……………………………………………… 53

B. Release……………………………………………………………. 53

C. Infant Claims……………………………………………………… 54

D. Attorney’s Fees…………………………………………………… 54

VI. FTCA STATUTES AND REGULATIONS ……………………………... 55

A. Statutes……………………………………………………………. 55

B. Regulations……………………………………………………….. 63

VII. APPENDIX

A. Standard Form 95……………………………………………….. 72 B. Attorney Authorization…………………………………………… 75 D. Agency Acknowledgement Letter ……………………………... 77 E. Agency Denial Letter…………………………………………….. 87 F. List of U.S. Departments and Agencies ……………………... 91

About the Author…………………………………………………………………. 103



I. INTRODUCTION

A. History and Summary

Prior to 1946, the United States was immune from negligence suits under the

doctrine of sovereign immunity. In order to avoid the burden of passing private relief

bills, Congress passed the Federal Tort Claims Act.

“The FTCA, 28 U.S.C. 1346(b), 2401(b) and 2671-2680, constitutes a limited

waiver by the United States of its sovereign immunity” and allows for a tort suit against

the United States under specified circumstances. Under the FTCA, a private citizen

may sue for injuries caused by “the negligent or wrongful act or omission of any

employee of the Government while acting within the scope of his office or employment,

under circumstances where the United States, if a private person, would be liable to the

claimant in accordance with the law of the place where the act or omission occurred.”

Under the FTCA, sovereign immunity is waived if a claim meets six requirements:

(1) brought against the United States,

(2) for money damages,

(3) for injury to or loss of property, or personal injury, or death,

(4) caused by the negligent or wrongful act or omission of any employee of the Government,

(5) while acting within the scope of his or her office or employment, and

(6) under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.



The Second Circuit has stated that the purpose of the FTCA is “both to allow

recovery by people injured by federal employees or by agents of the Federal

Government, and, at the same time, to immunize such employees and agents from

liability for negligent or wrongful acts done in the scope of their employment.” Celestine

v. Mount Vernon Neighborhood Health Center, 403 F.3d 76 (2d Cir. 2005) (citing 28

U.S.C. 2679(b)(1) and 42 U.S.C. 233(a)). The FTCA, with few limited exceptions,

provides the exclusive means by which individuals can seek compensation when injured

by federal employees. Some highlights of the FTCA follow:

Negligence claims are allowed, but claims for intentional torts and strict liability are not. 28 U.S.C. 2680.

Waiver of sovereign immunity is limited and must be strictly construed in favor of continuing immunity. 28 U.S.C. 2680.

Claimant must present an administrative claim to the appropriate government agency for adjudication before filing suit. 28 U.S.C. 2675(a).

FTCA statute of limitations requires claim presentation to an agency within

2 years of accrual. 28 U.S.C. 2401(b).

FTCA statute of limitations requires commencement of suit within 6 months of formal claim denial (or silence for 6 months). 28 U.S.C. 2401(b).

U.S. District Courts have exclusive jurisdiction to hear FTCA claims.

Venue proper in district where the plaintiff resides or where the

act/omission occurred. 28 U.S.C. 1402(b).

FTCA provides only for non-jury trials. 28 U.S.C. 2402.

No punitive damages. 28 U.S.C. 2674.

No prejudgment interest damages. 28 U.S.C. 2674.

Attorney fees are fixed at 20% of an administrative settlement, and 25% of a judgment or compromise after suit is filed. 28 U.S.C. 2678.



II. IDENTIFYING THE GOVERNMENTAL ACTOR A list of the nearly 500 United States government departments and agencies is

set forth at pages 91 through 102. At the risk of stating the obvious, practitioners should

assume that a governmental actor is in involved until proven otherwise.

In 1993, the scope of the FTCA was expanded when medical malpractice

coverage was extended to grantees of the Department of Health and Human Services’

(“HHS”) Health Resources and Services Administration’s (“HRSA”) Health Center

Program (“HCP”).1 Now, FTCA coverage applies to health centers that receive funding

under Section 330 of the Public Health Service Act,2 as well as their employees, board

members, and contractors who are deemed “employees.” The HCP includes

community health centers, health centers for homeless and migrant populations, and

health centers in public housing complexes.3

1 Initially, Congress enacted the Federally Supported Health Centers Assistance Act of 1992 (Pub L. No. 102-501, 106 Stat. 3268) to provide FTCA medical malpractice coverage to the HCP for three years. Subsequently, the coverage was made permanent by the Federally Supported Health Center Assistance Act of 1995 (Pub. L. No. 104-73, 109 Stat. 777, codified at 42 U.S.C. 233(g)-(n). 2 See 42 U.S.C. 254(b). 3 Searches for federally-qualified health centers (“FQHC”) and federally-qualified health center look-alikes (“FQHCLA”) can be run by (1) address, (2) county, or (3) state, via the “Find A Health Center” tool available on the United States Department of Health & Human Services website, at findahealthcenter.hrsa.gov.

As of July 1, 2015, there were 443 FQHCs and/or FQHCLAs in the following New York counties: Albany (3), Bronx (82), Cattaraugus (1), Cayuga (5), Chautauqua (1), Columbia (1), Cortland (9), Dutchess (8), Erie (3), Essex (5), Franklin (1), Hamilton (1), Kings (68), Livingston (3), Monroe (35), Montgomery (1), Nassau (8), New York (86), Niagara (2), Oneida (1), Onondaga (8), Ontario (2), Orange (15), Orleans (3), Oswego (3), Queens (27), Rensselaer (1), Richmond (5), Rockland (7), St. Lawrence (1), Saratoga (1), Schenectady (1), Steuben (1), Suffolk (1), Sullivan (5), Ulster (7), Warren (9), Washington (1), Wayne (3), Westchester (14), and Yates (4).



With regard to FTCA qualified or deemed-qualified healthcare facilities contain

one or more of the following buzzwords in the name of the facility:

Center, Clinic, Community, Mission, Mobile, Outreach, Project, School-Based, Service(s); and Shelter.

At the risk of stating the obvious, the presence of multiple buzzwords, e.g., Community

Health Center, Mobile Health Clinic, Pediatric Health Services Project, is a strong

indicator of federal involvement. As a corollary, the names of many FTCA facilities

contain no words or information that would suggest a federal connection, e.g., West

Mountain Primary Care, the Pines at Glens Falls, Lipman Family Dental Center, Summit

Pediatrics, North Country OBGYN, etc.

To quote the Department of Health and Human Services website, “you may wish

to check with the health center to confirm [whether] a particular entity [is federally-

funded].”

A. Key Personnel

i. Department of Health and Human Services

General Counsel:

William B. Schultz, Esq. 200 Independence Avenue, S.W., Room 713-F Washington, D.C. 20201 T: 202-690-7741 F: 202-690-7998 E: [email protected]



Associate General Counsel, General Law Division:

Daniel Barry, Esq. 330 Independence Avenue, S.W., Room 3562 Washington, D.C. 20201 T: 202-619-0150 F: 202-619-2922 E: [email protected]

Deputy Associate General Counsel, GL Division, Claims Branch:

William Biglow, Esq. 330 Independence Avenue, S.W. T: 202-619-0171 F: N/A E: [email protected]

Regional Office of the General Counsel, New York (Region 2):

Joel Lerner, Esq. Jacob Javits Federal Building , 26 Federal Plaza, Rm. 3908 New York, NY 10278 T: 212-264-6373 F: 212-264-6364 E: [email protected]

ii. U.S. Department of Veterans Affairs

General Counsel:

Leigh A. Bradley, Esq. 810 Vermont Avenue, N.W. Washington, D.C., 20420 T: 202-273-6660 F: 202-273-0197 E: [email protected]

Regional Counsel, Brooklyn:

George Burns, Esq. 800 Poly Place, Building 14, Brooklyn, NY 11209 T: 718-630-2901 F: 718-630-2900 E: [email protected]



Regional Counsel, Buffalo/Albany/Syracuse:

Joseph G. Moreno, Esq. 120 LeBrun, Buffalo, NY 14215 T: 716-862-8853 F: 700-432-6545 E: [email protected]

Georgette Gonzalez-Snyder, Esq. Office of Regional Counsel, Region 21, Syracuse Area Office 800 Irving Avenue, Syracuse, NY 13210 T: 315-425-4838 F: 315-425-4858 E: [email protected]

Kevin B. Thiemann, Esq. Office of Regional Counsel, Region 21, Albany Area Office 113 Holland Avenue, Albany, NY 12208 T: 518-626-6949 F: 518-626-6948 E: [email protected]

iii. United States Postal Service

General Counsel:

Thomas J. Marshall, Esq. United States Postal Service 475 L’Enfant Plaza, S.W. Washington, D.C., 21260 T: 202-268-2000 E: [email protected]

iv. Army

Office of the Judge Advocate General:

U.S. Army Claims Service ATTN: JACS-TCO

4411 Llewellyn Avenue, Suite 5360 Fort George G. Meade, Maryland 20755 T: 301-677-7009



v. Navy

Office of the Judge Advocate General:

Tort Claims Unit Norfolk 9620 Maryland Avenue, Suite 205

Norfolk, VA 23511 T: 757-341-4583 F: 757-341-4562

E: [email protected]

vi. Customs and Border Protection

Chief Counsel:

Scott K. Falk, Esq. 1300 Pennsylvania Avenue, N.W. Washington, D.C., 20229 T: 202-344-2940 F: 202-344-2950

III. THE ADMINISTRATIVE CLAIM4

An administrative claim should be presented before a lawsuit may be

commenced against the United States of America. The claim should be presented to

the appropriate federal agency, e.g., Army, Navy, Air Force, Department of Veterans

Affairs, Postmaster General, Department of Health and Human Services, etc., within

two (2) years from the date the claim accrued.

4 The Government may refer to the 374 page Federal Tort Claims Handbook (“FTCH”) when reviewing, evaluating, processing and/or defending a claim or action. An electronic copy of the FTCH may be found at http://biotech.law.lsu.edu/cases/immunity/ftca_handbook.pdf.



Following presentation, action on the part of the relevant agency will either be:

(1) acceptance and settlement negotiations, (2) a request for additional information,5 (3)

denial of the claim,6 or (4) no response. Following denial, or the passage of six (6)

months without word from the agency, a summons and complaint can be filed.7

A. Exhaustion

A claimant must exhaust administrative remedies before filing suit. The need to

present a claim before commencing an action is jurisdictional. See Adams v. U.S. Dept.

of Hous. & Urban Dev., 807 F.2d 318, 321 (2d Cir. 1986). Stated differently, a court

does not have subject matter jurisdiction over an action filed in federal court unless the

claimant has exhausted administrative remedies set forth in the FTCA. Actions

commenced prematurely are subject to dismissal. See, e.g., McNeil v. U.S., 508 U.S.

106, 113 (1993) (“FTCA bars claimants from bringing suit in federal court until they have

exhausted their administrative remedies”); Adeleke v. U.S., 355 F.3d 144, 153 (2d Cir.

2004) (“plaintiff must file an administrative claim with the appropriate federal agency

before suing for relief in federal court”); Millares Guiraldes de Tineo v. U.S., 137 F.3d

5 An example of an agency’s request for additional information is set forth at pages 77-86. 6 An example of an agency’s denial is set forth at pages 87-90. 7 Where a claimant submits a deficient claim, the agency may/might notify the claimant in writing that the failure to timely submit a proper claim may result in the statute of limitations barring the claim. See Kelley v. U.S., 568 F.2d 259 (2d Cir. 1978), cert. denied, 439 U.S. 830 (1978); see also Danowski by Danowski v. U.S., 924 F.Supp. 661 (D.N.J. 1996) (failure of USPS to notify claimant of defect leads to court holding that father’s claim for son’s medical bills paid by him was constructively filed); James v. U.S., 2000 WL 1132035 (S.D.N.Y. 2000) (equitable tolling available to plaintiff because VA failed to furnish plaintiff with a standard form 95 and/or the need to file one).

However, it appears that the Government is under no obligation to inform a claimant that his/her notice of claim is insufficient. See, e.g., Donahue v. U.S. Transp. Sec. Admin., 457 F.Supp.2d 137 (E.D.N.Y. 2006) (Spatt, J.) (informing the claimant that a claim was insufficient was “done merely out of courtesy”).



715, 719 (2d Cir. 1998) (limitations set forth in the FTCA “foreclose suit unless the tort

claimant has previously presented to the appropriate administrative agency a claim that

meets the specific statutory requirements as to its form, content and timing”). In theory,

“[p]resentment serves the purpose of permitting the Federal Agency to conduct an

investigation into the claimant’s allegations and to estimate the value of the claim . . . .”

Donahue v. U.S., 457 F.Supp.2d 137, 140 (E.D.N.Y. 2006) (Spatt, J.).

The presentment requirement is strictly construed. Johnson v. Smithsonian Inst.,

189 F.3d 180, 189 (2d Cir. 1999). A court cannot waive the administrative filing

requirement, even if the claimant seeks an accommodation for disability or hardship.

See Frasier v. U.S. Dept. of Health and Human Services, 779 F.Supp. 213 (N.D.N.Y.

1991) (Scullin, J.). Further, the requirement “applies equally to litigants regardless of

whether they are represented by counsel or are proceeding pro se.” Holmes v. U.S.,

2005 WL 2298159 (S.D.N.Y. 2005) (Daniel, J.). All ambiguities are resolved in favor of

the government. See Moreno v. U.S., 965 F.Supp. 521, 524 (S.D.N.Y. 1997) (Kram, J.).

A good faith intention to comply with the requirements of the FTCA cannot and

does not substitute for actual compliance. See O’Conner v. U.S., 2000 WL 375238

(S.D.N.Y. 2000) (Batts, J.).

Where the potentially negligent actor is an individual, a party may not skirt

exhaustion by filing an action directly against the United States. See, e.g., Kaufman v.

U.S., 2014 WL 3845074 (N.D.N.Y. 2014) (McAvoy, J.) (dismissing birth injury action

against physician for failure to exhaust administrative remedies, and subsequent action

against United States for same reason).



i. Statutory Exemption To Timely Exhaustion – Westfall Act

Generally, a lawsuit that is commenced prematurely (i.e., before exhaustion) is

treated as a nullity and is subject to dismissal. However, the law affords some flexibility

when a plaintiff overlooks exhaustion and files a complaint within the prescribed time for

administrative review (i.e., two years from accrual).

In 1988, Congress passed the Federal Employees Liability Reform and Tort

Compensation Act (the “Westfall Act”), which expressly provides that while the

administrative exhaustion requirement would apply to all actions, even those removed8

from state court, plaintiffs would be given an opportunity, after the removal, to exhaust

those remedies. See Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d at

83.

The Westfall Act partially remedies the perceived injustice of requiring a plaintiff

who lacks “reason to know that his state court suit, in fact, lies only against the United

States and can, therefore, be removed to federal court,” to comply with an exhaustion

requirement of which the plaintiff almost assuredly is unaware. Celestine, 403 F.3d at

83 (discussing Kelley v. United States, 568 F.2d 259 (2d Cir.1978) (which carved out a

judicial exception to exhaustion for FTCA claims brought initially in state court)). Under

the Westfall Act, an FTCA complaint filed before the plaintiff exhausts administrative

remedies may still be dismissed. Notwithstanding, if the case is one “in which the United

States [was] substituted as the party defendant,” then the plaintiff may submit a notice

8 Removal papers will include a certification that the individually named defendant was, at the relevant time, employed by the United States and acting within the scope of his or her duties. While this certification carries weight, this certification by the Government “is not the final word.” Catania v. Herbst, 2012 WL 4748077 (E.D.N.Y. 2012) (Spatt, J.). Thus, certifications are judicially reviewable.



of claim “to the appropriate Federal agency within 60 days after dismissal,” as long as

the notice “would have been timely had it been filed on the date the civil action was

commenced.” 28 U.S.C. § 2679(d)(5). Accordingly, a state tort claim against a

“deemed” federal employee that is transformed into an FTCA claim against the United

States is not “forever barred” for the plaintiff's prior failure to file a timely notice of claim,

if the state complaint was filed “within two years after [the] claim accrue[d].” 28 U.S.C.

2401(b).

Short of filing, mere steps taken in connection with a potential lawsuit do not

amount to commencement sufficient to trigger savings under Westfall. See Phillips v.

Generations Family Health Center, 723 F.3d 144 (2d Cir. 2013) (“Connecticut statute

allowing a party to file a petition for a [90 day] extension of time to [make a reasonable

inquiry into whether there is a good faith belief to file suit] makes clear that the petition

does not commence anything”).

B. Written Notice

The appropriate administrative agency must timely be presented with written

notice of an administrative claim.

i. Format

Format is less important than substance. The substance of the written notice is

critical. Generally, written notice is supplied by submitting a properly completed

Standard Form 95 (“SF95”).9

9 A blank SF95 has been reproduced, infra, at pages 72-74. An electronic copy can be found at http://www.usdoj.gov/civil/docs_forms/SF-95.pdf.



A letter from a claimant to an agency is acceptable if it contains the appropriate

elements. See, e.g., Pinchasow v. U.S., 2006 WL 3370714 (2d Cir. 2006) (while letter

may suffice to provide notice of incident, it was inadequate because it did not contain a

sum certain); Sovulj v. U.S., 2003 WL 21524835 (E.D.N.Y. 2003) (Block, J.) (letter

presented to agency was adequate notice because it contained allegations of

negligence and a sum certain that provided “sufficient information for the agency to

commence an investigation”); DiLorenzo v. U.S., 496 F.Supp. 79 (S.D.N.Y. 1980)

(Broderick, J.) (claimant’s letters to FBI, DEA and DOJ complaining about his medical

treatment were insufficient as they spoke about a potential lawsuit, and did not contain a

sum certain or any indication that claimant was seeking monetary relief); Dolan v. Dept.

of Army, 1999 WL 199012 (S.D.N.Y. 1999) (Koetl, J.) (claimant’s letter to DOD

describing how injury occurred, detailing injuries and requesting that DOD contact him

was inadequate without sum certain).

Miscellaneous documents may provide adequate written notice. See, e.g.,

Millares Guiraldes de Tineo v. U.S., 137 F.3d 715 (2d Cir. 1998) (personal delivery to

DEA agent of a document titled “Memory Aid” acceptable if had it contained a written

sum certain).

A filed state court lawsuit is not a claim. See Pinchasow v. U.S., 2006 WL

3370714 (2d Cir. 2006) (Gershon, J.) (summons and complaint filed in the Supreme

Court of State of New York did not constitute appropriate notice because “court

documents alone do not notify the agency that a claimant seeks administrative relief”).



ii. Presentment

A claim is not presented until the appropriate agency receives written notice.

See 28 C.F.R. 14.2(a); Jaghama v. U.S., 2013 WL 508497 (E.D.N.Y. 2013) (Gershon,

J.) (proof of mailing is inadequate); Lotrionte v. U.S., 560 F.Supp. 41 (S.D.N.Y. 1983)

(Pollack, J.).

Who, specifically, within the agency receives written notice appears to be

unimportant. See Frey v. Woodard, 481 F.Supp.1152 (E.D.Pa. 1979) (delivery of claim

to Marine Corps Enlistment Recruiting Office was presentment to agency), rev’d on

other grounds, 748 F.2d 173 (3d Cir. 1984).

While there is no “mailbox rule” in the statute, some courts have applied this logic

to FTCA cases. Therefore, proof of mailing may/might create a rebuttable presumption

of receipt. See Cordaro v. Lusardi, 354 F.Supp. 1147 (S.D.N.Y. 1973) (Gurfein, J.),

aff’d without opinion, 513 F.2d 624 (2d Cir. 1975) (applying rebuttable presumption and

denying government’s motion for summary judgment where claimant’s attorney

submitted an affidavit stating that written notice was mailed to agency 17 months after

accident).

Then again, maybe not. See Payne v. U.S., 10 F.Supp.2d 203, 205 (N.D.N.Y.

1998) (Kahn, J.) (finding that photocopies of letter and notice of claim that were

allegedly mailed were not sufficient to establish receipt by appropriate federal agency).



To the extent that the “mailbox rule” is viable, it is a tenuous argument, at best,

and will easily be defeated by the government. See, e.g., Garland-Sash v. Lewis, 348

Fed.Appx. 639 (2d Cir. 2009) (“even assuming that Garland-Sash could benefit from the

common-law “mailbox rule” to salvage her FTCA claim . . . she has neither alleged nor

provided any evidence indicating that an FTCA claim was, in fact, mailed”); Glover v.

U.S., 111 F.Supp.2d 190 (E.D.N.Y. 2000) (Trager, J.) (dismissing claim where

government submitted affidavits from USPS denying receipt of claim by mail); Vecchio

v. U.S., 2005 WL 2978699 (S.D.N.Y. 2005) (Crotty, J.) (government’s two employee

affidavits of non-receipt overcame evidence submitted by claimant that notice was

mailed to West Point); Rodriguez v. U.S., 2003 WL 21961121 (S.D.N.Y. 2003) (Stein,

J.) (finding that plaintiff’s assertions that she filed an administrative claim with the proper

agency did not amount to “presentment” where government proffered sworn affidavits

that the claim was never received).

iii. Submission By

A claim may be submitted by the injured party, an agent, or a legal

representative. See 28 C.F.R. 14.3(b).

Where there are multiple claimants seeking a recovery from a single tort, each

claimant must “individually satisfy the jurisdictional prerequisite for filing a proper claim,

unless another is legally entitled to assert a claim on their behalf.” Hodder v. U.S., 328

F.Supp.2d 335, 359 (E.D.N.Y. 2004) (Pollak, M.J.) (refusing to consider issue of

damage to car because wife’s administrative claim alleged that husband owned car and

husband, who was title owner, did not submit administrative claim).



It is well-settled that parents may submit claims for their children. In fact, it

appears that almost anyone may submit an administrative claim for a child as their “next

friend” or “guardian ad litem.” See Seide v. Prevost, 536 F.Supp. 1121 (S.D.N.Y. 1982)

(Sweet, J.) (members of Board of Visitors could submit administrative claim on behalf of

patient-children). A “next friend” is anyone who “has an interest in the welfare of an

infant who may have a grievance or a cause of action.” Child v. Beame, 412 F.Supp.

593, 599 (S.D.N.Y. 1976) (Weinfeld, J.).

In a wrongful death action, the proper claimant is the executor or administrator of

the decedent’s estate, or any other person legally entitled to assert such a claim in

accordance with applicable state law. See 28 C.F.R. 14.3(d). It appears that

appointment is not necessary before an administrative claim may be presented. See

Byrne v. U.S., 804 F.Supp. 577, 582 (S.D.N.Y. 1992) (Leisure, J.) (“Although plaintiff

was not the personal representative of the decedent at that time, his submission

provided the government with the minimal notice required under the FTCA so that it

could adequately investigate the claim.”); Knapp v. U.S., 844 F.2d 376, 380 (6th Cir.

1988) (holding that even though plaintiff had not “received letters of authority when she

presented [her administrative claim], this circumstance had no effect on her right to sue

under the FTCA once she had qualified”).

However, the Southern District of New York held otherwise in a 1983 decision.

See DelValle v. Veterans Administration, 571 F.Supp. 676 (S.D.N.Y. 1983) (Carter, J.)

(dismissing action because no evidence that claimants, who submitted forms through

their attorney, were personal representatives of the decedent).



Setting aside administrative notice, appointment is necessary before an action

can be commenced in a district court. See Byrne, 804 F.Supp. at 582 (“plaintiff was

decedent’s duly appointed executor at the time this action was commenced . . . plaintiff

has met the minimal requirements of 28 U.S.C. 2675(a)”).

Derivative claimants are cautioned to file written notice separate from the primary

or underlying claim. See, e.g., Jackson v. U.S., 488 F.Supp.2d 191 (N.D.N.Y. 2007)

(Kahn, J.) (dismissing spousal claim not presented during administrative process);

Wisner v. U.S., 154 F.R.D. 39 (N.D.N.Y. 1994) (Hurd, J.) (mere mention of name of

spouse in filed claim did not put defendant on notice of the claim as derivative spouse

was not listed as claimant, nor was nature of claim articulated); Rispoli v. U.S., 576 F.

Supp. 1398, 1403 (E.D.N.Y. 1993) (Platt, J.) (dismissing derivative claim where spouse

not listed in SF95, only in separate affidavit, and no response to demand for separate

sum certain), aff’d without opinion, 779 F.2d 35 (2d Cir. 1985), cert. denied, 474 U.S.

1069 (1986); Willie v. U.S., 1993 WL 184149 (N.D.N.Y. 1993) (McAvoy, J.) (dismissing

spousal claim filed without separate sum certain); Fol v. U.S., 548 F.Supp. 1257, 1258

(S.D.N.Y. 1982) (Pollack, J.) (dismissing derivative claim because spouse not listed as

claimant in SF95); Heaton v. U.S., 383 F.Supp. 589 (S.D.N.Y. 1974) (Knapp, J.) (court

lacks jurisdiction over wife’s claim for loss of services since administrative complaint

alleged only husband’s personal injury).



If a separate derivative claim is not presented, all hope is not lost. See Sciolino

v. U.S., 2001 WL 266024 (W.D.N.Y. 2001) (Elfvin, J.) (spousal derivative claim viable,

despite fact that spouse did not submit separate written notice, because notice

submitted contained name and date of birth of husband and wife, claim was signed by

wife “individually and as spouse,” enclosure indicated that claim was being submitted on

behalf of husband and wife, and claim included sum certain for husband, and separate

sum certain for derivative spouse).

In sum, where a plaintiff asserts multiples claims on a single claim form, the form

much give “constructive notice” of each additional claim, or the “extra” claims will later

be dismissed. The plaintiff bears the burden of establishing that the single claim for

gave constructive notice. See, e.g., Johnson v. U.S., 594 F.Supp. 728 (E.D.N.Y. 1984)

(Nickerson, J.), aff’d, 788 F.2d 845 (2d Cir. 1986), cert. denied, 479 U.S. 914 (1986)

(claim for assault and battery did not preserve jurisdiction for negligent supervision).

iv. Essential Contents

a. Adequate Notice

The mere act of filing a SF95 with the appropriate agency does not necessarily

fulfill the presentment requirements of 2675(a). Written notice timely filed with the

appropriate agency may be insufficient to toll the statute of limitations if it does not

“provide enough information to permit the agency to conduct an investigation and to

estimate the claim’s worth.” Romulus v. U.S., 983 F.Supp. 336 (E.D.N.Y. 1997)

(Trager, J.), aff’d, 170 F.3d 131 (2d Cir. 1998).



Stated differently, a claim meets the presentment requirements of 2675(a) only if

it is “specific enough to serve the purposes intended by Congress in enacting 2675(a) –

to ease court congestion and avoid unnecessary litigation, while making it possible for

the Government to expedite the fair settlement of tort claims.” Johnson v. U.S., 788

F.2d 845, 848-49 (2d Cir. 1986), cert. denied, 479 U.S. 914 (1986). That being said, an

administrative claim need not meet formal pleadings requirements, nor must a claim

state a cause of action. See id.; Downs v. U.S., 2009 WL 2611226 (N.D.N.Y. 2009)

(Scullin, J.) (“So long as basic information is provided, the question is whether a

reasonably thorough investigation should have uncovered any pertinent information in

the government's possession. Thus, even a relatively bare-bones SF95 should trigger

an agency investigation, and the agency should then anticipate claims stemming from

any pertinent information in the government's possession.”).

The burden is on the claimant to provide adequate details, as it is not the

responsibility of the agency to request any information missing from a SF 95. See

Keene Corp. v. U.S., 700 F.2d 836, 842 (2d Cir. 1983). Certainly, an agency “need not

ponder what it does not know during the administrative review process.” Guthrie v. Fed.

Bureau of Prisons, 2010 WL 2836155 (S.D.N.Y. 2010) (Preska, J.).

Whether the agency received “adequate” notice is determined on a case-by-case

basis. At a minimum, administrative notice should include the time and date of the

incident,10 the individuals involved, and a reasonably detailed description of injuries and

damages.

10 See Shoemaker v. U.S., 1997 WL 96543 (S.D.N.Y. 1997) (Scheindlin, J.) (no claim without time and date).



Most decisions arise out of claims where the particulars supplied about the

damage were less than ideal. See, e.g., Lee v. U.S., 2014 WL 2750002 (2d Cir. 2014)

(general description of injury to the “neck, back and right shoulder” without

supplemental information failed to satisfy 2675(a)); Davis v. U.S., 2013 WL 5225931

(S.D.N.Y. 2013) (general SF95 and failure to respond to agency examiner’s requests

was inadequate presentment); Henry v. U.S. Dept. of Homeland Sec., 2011 WL 477719

(E.D.N.Y. 2011) (Bianco, J.) (satisfying particularity requirement as form provided time,

date, location, basis for claim, nature and extent of injury, and amount being sought);

Lopez v. Zenk, 2008 WL 3285895 (E.D.N.Y. 2008) (Dearie, J.) (sufficient notice of claim

for denial of medical care); Donahue v. U.S. Transp. Sec. Admin., 457 F.Supp.2d 137

(E.D.N.Y. 2006) (claim invalid where notice document alleged “serious, permanent

physical injuries and mental anguish” as well as “hospital treatment” and “medical

treatment”); (State Farm Mut. Auto. Ins. Co. v. U.S., 326 F.Supp.2d 407 (E.D.N.Y. 2004)

(Garaufis, J.) (plaintiff supplied adequate notice about motor vehicle accident with sum

certain); Souvulj v. U.S., 2003 WL 21524835 (E.D.N.Y. 2003) (Block, J.) (“Although it is

a close question, under a lenient interpretation of the notice requirement, the Court

concludes that plaintiff’s skeletal administrative claim presented sufficient information for

the agency to begin an investigation.”); compare Tamares v. U.S., 2009 WL 691002

(S.D.N.Y. 2009) (Leisure, J.) (no presentment where injuries were insufficiently detailed,

the damages were poorly documented and agency requests for additional information

went unfulfilled, despite fact that agency received some documentation from another

source); Sorge v. U.S., 1997 WL 603451 (S.D.N.Y. 1997) (Owen, J.) (dismissing claim

despite notice providing that accident caused claimant to sustain “multiple bodily



injuries” and “severe permanent personal injuries” to his “neck and back” the “full extent

of which is not presently known,” because claimant’s injury description was vague and

claimant did not supply records describing the injuries for which he sought $5 million);

Schunk v. U.S., 783 F.Supp. 72, 81 (E.D.N.Y. 1992) (Platt, J.) (claimant’s short factual

statement about a Tylox prescription he received at VA was inadequate for the

government to investigate a complex medical malpractice action involving other

medications, as well as mistreatment in the hospital).

In addition to ensuring that the government is placed on adequate notice about a

claim, practitioners should be comprehensive when drafting the written notice for a

second reason – i.e., so that they are not precluded from asserting a theory of liability or

element of damage at trial. In other words, a claimant’s suit may be brought only on

those facts and theories of liability raised in the administrative claim. A claimant cannot

“present one claim to the agency and then maintain suit on the basis of a different set of

facts.” Dundon v. U.S., 559 F.Supp. 469, 476 (E.D.N.Y. 1983) (Bramwell, J.) (denying

motion to dismiss because administrative claim’s allegations about misdiagnosis put

government on notice of claim regarding brain surgery arising out of misdiagnosis).

What constitutes “new” facts, theories and damages leads to motion practice.

See, e.g., Johnson by Johnson v. U.S., 594 F.Supp. 728 (D.C.N.Y. 1984) (Nickerson,

J.) (claim that alleged molestation of infant did not encompass claim for negligent

supervision and, as such, negligent supervision claim had not been presented), aff’d,

788 F.2d 845 (2d Cir. 1986), cert. denied, 479 U.S. 914 (1986).



b. Sum Certain

The administrative tort claim must contain a written sum certain. See 28 C.F.R.

14.2; Adams v. U.S. Dept. of Housing & Urban Dev., 807 F.2d 318 (2d Cir. 1986);

Keene Corp. v. U.S., 700 F.2d 836, 841-42 (2d Cir. 1983), cert. denied, 464 U.S. 864

(1983). The absence of a specified sum is a jurisdictional defect and cannot be waived.

See, e.g., Keene, 700 F.2d at 841; Pinchasow v. U.S., 2006 WL 3370714 (2d Cir.

2006); Rodriguez v. U.S., 2003 WL 21961121 (S.D.N.Y. 2003) (Stein, J.) (dismissing

complaint for lack of subject matter jurisdiction because the plaintiffs failed to include a

sum certain); Pentagen Technologies Int’l Ltd. v. U.S., 2002 WL 465308 (S.D.N.Y.

2002) (Stein, J.) (no exhaustion, despite actual notice to government about particulars

of claim via letter, as there was no sum certain); Rogers v. U.S., 568 F.Supp. 894

(E.D.N.Y. (1983) (McLaughlin, J.) (dismissing claim that did not include sum certain).

Certainly, a finite figure contained in a SF95, or equivalent, is a sum certain.

Note, however, that an extraordinary figure that has no apparent relationship to the

damages detailed in the claim may be treated as a nullity. See Lovell v. Unknown

Federal Correctional Officers, 595 F.2d 281 (D.C.Ga. 1979) (“gross figure [stated in

claim] . . . which, on the face of the claim, far exceeded any reasonable estimate of

valuation” was insufficient as “[i]t takes more than this to require the courts to crank up

their elaborate machinery to adjudicate a claim”).



Stating that the claimant seeks damages “in excess of $X,” or “$X plus an

amount to be determined” may be a problem. Second Circuit courts are inclined to

convert demands of this nature into demands for the dollar amount stated.11 The “in

excess of” or “approximately” language is commonly discarded as surplussage. See

Adams, 807 F.2d at 321 (written notice that claimant seeks damages “in excess of

$1,000” is a sum certain only for $1,000 of the $4,000,000 claimed as damages);

Keene, 700 F.2d at 842 (written notice that claimant “seeks $1,088,135 and an

additional amount yet to be ascertained” is a sum certain only for $1,088,135); Dendy v.

U.S., 2009 WL 890618 (N.D.N.Y. 2009) (Scullin, J.) (dismissing injury claims, but

permitting property damage claim for $3,800 to continue as it was less than $58,000

sum set forth in notice); Cooper v. U.S., 498 F.Supp. 116 (W.D.N.Y. 1980) (Elfvin, J.)

(“$666.43 plus car rental” for property damage, “pending no fault benefits” for personal

injury, and a “?” in box for total damages was not a sum certain).

In a rare case, the Second Circuit considered $900 cash plus a list of property to

be acceptable as a sum certain. See Mora v. U.S., 955 F.2d 156 (2d Cir. 1992). In

another rare case, the Southern District of New York held that a claim for interest, with

sufficient information to calculate total sought, was a sum certain despite the omission

of a total. See Marchese v. U.S., 781 F.Supp. 241 (S.D.N.Y. 1991) (Haight, J.)

(government could calculate total by applying marginal interest rate to stated $100,000

11 In other Circuits, the “in excess of” language has the effect of voiding the sum certain stated. The reasoning is that the additional language prevents the Government from accurately assessing exposure. See, e.g., Estate of Gladden v. U.S., 18 Fed.Appx. 756 (10th Cir. 2001) (“In excess of $100,000” does not constitute a sum certain nor do letters requesting reinstatement, back pay, front pay, etc., thereby administrative filing requirement not met).



certificates of deposit as “the nation’s chief bank regulator, presumably was competent

to calculate the amount of the plaintiffs’ interest”).

A verbal sum certain is not adequate. See, e.g., Bialowas v. U.S., 443 F.2d 1047

(3d Cir. 1971) (request during phone call for “a couple thousand dollars for suffering”

was not a sum certain as it was not in writing).

A claim submitted by a parent, individually, and on behalf of a minor child need

not state a separate sum certain for the parent and child. See Locke v. U.S., 351

F.Supp. 185 (D.C. Hawaii, 1972).

Agency permission to submit a sum certain later has been deemed invalid. See

Jordan v. U.S., 333 F.Supp. 987 (E.D. Pa. 1971), aff’d mem., 474 F.2d 1340 (3d Cir.

1973).

c. Signed and Dated

An administrative claim should be signed by each claimant, or each claimant’s

representative. See 28 C.F.R. 14.2(a). An unsigned claim may be rejected by agency.

See Cuello v. Lindsay, 2011 WL 1134711 (E.D.N.Y. 2011) (Matsumoto, J.) (SF95

submitted on May 11, 2009 to BOP Regional Office was rejected as unsigned).

Absence of a signature is probably not jurisdictional. See, e.g., Leaty v. U.S., 748

F.Supp. 268 (D.N.J. 1990); Champagne v. U.S., 573 F.Supp. 488 (E.D. La. 1983) (claim

proceeded even though adult child did not sign).



An attorney may sign for a claimant. See, e.g., Pardy v. U.S., 575 F.Supp. 1078

(D.C. Ill. 1983); Hunter v. U.S., 417 F.Supp. 272 (D.C. Cal. 1976). However, where an

attorney signs, the attorney should consider supplying a document establishing that the

attorney is authorized to sign for the claimant(s).12 In the absence of proof, an action

may be dismissed. See Del Valle v. Veterans Admin, 571 F.Supp. 676 (S.D.N.Y. 1983)

(Carter, J.) (dismissing complaint because there was no proof that attorney was

authorized to present claim on behalf of named claimants or on behalf of decedent’s

estate).

While there are no decisions within the Second Circuit on this issue, at least one

court has held that a claimant’s failure to date the administrative claim is a consideration

on a motion for dismissal. See Hilvac v. U.S., 256 F.Supp. 1274 (N.D. Ill. 1972)

(dismissing action because SF 95 was unsigned, undated and without a sum certain).

C. APPROPRIATE AGENCY Written notice of the administrative tort claim must be presented to the

appropriate government agency. The FTCA does not define “appropriate federal

agency.” Generally, this means the agency whose “employees’ acts or omissions

caused the injuries which are the subject of the claim.” Lotrionte v. U.S., 560 F.Supp.

41 (S.D.N.Y. 1983) (Pollack, J.), aff’d, 742 F.2d 1436 (2d Cir. 1983).

12 A form “attorney authorization” is set forth at page 75-76.



i. Wrong Agency

If a claim is presented to the wrong agency, the receiving agency has a duty to

do two things: (1) forward the claim “forthwith” to the appropriate agency, and (2) notify

the claimant of the transfer. See 28 C.F.R. 14.2(b)(1); 55 Motor Ave. Co. v Liberty

Indus. Finishing Corp., 885 F.Supp. 410 (E.D.N.Y. 1994) (Amon, J.) (plaintiff gave

constructive notice of claim to General Services Administration even though claim was

actually filed with Department of Justice). If the receiving agency fails to forward the

claim, the inaction may give rise to a claim for “constructive presentment” to the

appropriate agency. See Willie v. U.S., 1993 WL 184149 (N.D.N.Y. 1993) (McAvoy, J.)

(citing Bukala v. U.S., 854 F.2d 201 (7th Cir. 1988) (excusing plaintiff’s failure to file a

medical malpractice claim with the Veterans’ Administration because plaintiff timely filed

her claim with the EEOC and, had the EEOC exercised “due diligence,” the claim would

have been transferred to the correct agency)).

Note, however, that an agency’s failure to transfer a claim to the appropriate

agency does not extend the statute of limitations. See Lotrionte v. U.S., 560 F.Supp 41,

43 (S.D.N.Y. 1983) (Pollack, J.) (“it would be error to deem a claim presented, for the

purposes of 28 U.S.C. 2401(b), on the day it is received by the improper agency. Such

a reading makes the use of the term “appropriate” in the statute, superfluous. The

Court must imply at least a minimal period for transfer of the claim to the appropriate

agency. In the present case, since the alleged presentation to the improper agency was

at the very end of the two year period of limitation, allowing time for transfer to the

appropriate agency necessarily defeats plaintiff's claim as time barred”).



The fact of transfer does not, in itself, preclude further transfer, return of the claim

to the claimant, or other appropriate disposition of the claim. See 28 C.F.R. 14.2(b)(1).

ii. Multi-Agency Claims

Where more than one agency is involved, each agency should be notified for

purposes of exhaustion. See 28 C.F.R. 14.2; see also Williams v. U.S., 2007 WL

951382 (S.D.N.Y. 2007) (Lynch, J.) (requiring plaintiff to notify Army of its alleged

malpractice and Department of Veterans Affairs of its alleged malpractice); Mosseri v.

Fed. Deposit Ins. Corp., 924 F.Supp. 605 (S.D.N.Y. 1996) (Baer, J.) (requiring plaintiff

who claimed injury by both the Federal Deposit Insurance Corporation and the General

Services Administration to satisfy exhaustion requirement with respect to both

agencies). Where multiple agencies are aware of a claim, one agency should notify the

claimant that it is the lead or primary agency for purposes of administrative review.

D. AGENCY REQUESTS FOR ADDITIONAL INFORMATION

An agency is permitted to request additional information from a claimant in

connection with its investigation of a claim – whether or not written notice was

adequate. See 28 U.S.C. 2672.

Where additional information is requested, but is not supplied, some courts have

dismissed the complaint for lack of administrative exhaustion. To date, the Second

Circuit has not determined whether a claimant must comply with an agency’s request

that a claim be supplemented. However, district courts have visited the issue. See

Hewitt v. U.S., 2011 WL 2419856 (S.D.N.Y. 2011) (Jones, J.) (plaintiff failed to exhaust

administrative remedies by submitting claim for $25 million in damages for retired

individual and failing to supply medical or economic records); Davis v. U.S., 2008 WL



398342 (S.D.N.Y. 2008) (Katz, J.) (failure to respond to government requests for

“substantial evidence to prove the extent of any losses incurred and any injury

sustained” was tantamount to failure to exhaust administrative remedies); Sorge v. U.S.,

1997 WL 603451 (S.D.N.Y. 1997) (Owen, J.) (dismissing complaint seeking $5 million

where description of injury in SF95 was vague and claimant failed to provide records

describing injuries and medical costs because it did not provide adequate notice);

Kornbluth v. Savannah, 398 F.Supp. 1266 (Judd, J.) (E.D.N.Y. 1975) (dismissing

complaint because administrative claim was vague and claimant/claimant’s attorney

failed to respond to requests for additional information over two year period); compare

(State Farm Mut. Auto Ins. Co. v. U.S., 326 F.Supp.2d 407 (E.D.N.Y. 2004) (Garaufis,

J.) (where written notice was adequate, claimants failure to supply requested

information did not give rise to jurisdictional dismissal).

E. STATUTE OF LIMITATIONS

i. Accrual

Federal law, not state law, determines the date that an FTCA claim accrues. See

Syms v. Olin Corp., 408 F.3d 95, 107 (2d Cir. 2005).

Generally, a tort claim under the FTCA accrues at the time the plaintiff is injured.

See U.S. v. Kubrick, 444 U.S. 111, 120 (1979); Rosse v. U.S., 2015 WL 2453477

(N.D.N.Y. 2015) (D’Agostino, J.) (accrual of claim at time of treatment, not upon onset of

PTSD years later); Barrett v. U.S., 689 F.2d 324, 327 (2d Cir. 1982).



ii. Diligence-Discovery Rule

a. Medical Malpractice

In medical malpractice cases, accrual occurs when the plaintiff discovers, or “with

reasonable diligence” should have discovered the critical facts of both (1) the injury, and

(2) the cause. See Kubrick, 444 U.S. at 120. To put it another way, the emerging rule

in the medical malpractice context is that accrual of the statute of limitations is

“postponed until the plaintiff has or with reasonable diligence should have discovered

the critical facts of both his injury and its [iatrogenic] cause.” Kronisch v. U.S., 150 F.3d

112, 121 (2d Cir. 1998).

A claim “does not accrue when a person has a mere hunch, hint, suspicion, or

rumor of a claim.” Kronisch, 150 F.3d at 121. However, the statute of limitations does

not await knowledge of malpractice. See, e.g., A.E.F. v. U.S., 2014 WL 2453300

(W.D.N.Y. 2014) (claim accrued when grandfather questioned parents in April of 2011

about cause of infant’s condition, not when plaintiff learned of bilateral hip dysplasia and

dislocated hips in July of 2007); Braver v. U.S., 2013 WL 1952307 (E.D.N.Y. 2013)

(claim accrued when mother had conversation with another mother three months after

birth, not at delivery despite physician’s disclosure that delivery was “tough,” together

with transport to NICU and discussion of abnormal MRI results); A.Q.C. ex rel. Castillo

v. U.S., 656 F.3d 135, 140 (2d Cir. 2011) (plaintiff’s mother aware of injury to child’s

brachial plexus four months after birth and aware of cause ten months after birth via

conversation with early intervention counselor who suggested that injury was “related in

some way to the medical treatment”); Valdez ex rel. Donely v. U.S., 518 F.3d 173, 177



(2d Cir. 2008) (while baby’s injury was evident immediately after birth, there was no

basis for mother to believe that “there was a potential doctor-related cause” until after

the child was discharged nearly 3 months later); Blair ex rel. Paul v. Culbert, 2009 WL

1294061 (N.D.N.Y. 2009) (Sharpe, J.) (denying motion to dismiss as record was

ambiguous about whether plaintiffs knew about brain injury and iatrogenic cause; issues

of fact about whether providers conversed with plaintiff about brain injury at birth); Lee

v. U.S., 485 F.Supp. 883 (E.D.N.Y. 1980) (Nickerson, J.) (claim did not accrue when

plaintiff was aware of brain injury caused by respiratory distress, but rather when

plaintiff “knew or in the exercise of due diligence should reasonably have known that the

alleged acts of the hospital doctors brought about that condition”).

Certainly, when a client approaches an attorney to investigate the possibility of a

lawsuit, the claim has accrued. See, e.g., A.Q.C. ex rel Castillo, 656 F.3d at 141 (claim

accrues when client has “sufficient knowledge of the possible iatrogenic cause of the

injury to seek legal assistance”); Phillips v. Generations Family Health Center, 723 F.3d

144 (2d Cir. 2013).

b. Non-Medical Malpractice

Application of the discovery rule is more limited in non-medical malpractice

cases. See, e.g., Peck v. U.S., 470 F.Supp. 1003 (S.D.N.Y. 1979) (Stewart, J.) (rule

limited to situations where United States has concealed its acts which the result that

plaintiff was unaware of their existence.



iii. Continuous Treatment The continuous treatment doctrine, which tolls a statute of limitations while a

patient is under continuing care from healthcare provider, is available to FTCA

claimants. See, e.g., Ulrich v. Veterans Admin. Hosp., 853 F.2d 1078 (2d Cir. 1988)

(continuous treatment applied against named hospital defendant as claimant was a

patient of the hospital throughout entire period and treated continuously with hospital

employee-physicians); Detor v. U.S., 1997 WL 627554 (N.D.N.Y. 1997) (Pooler, J.)

(continuous treatment applied to claim filed by blind and diabetic patient, who remained

under the care of the VA, because there was no evidence about when patient learned

failure to treat caused injury); compare Camire v. U.S., 535 F.2d 749, 750 (2d Cir. 1976)

(rejecting continuous treatment because it was not by same doctor, or associate of the

same hospital, for the time period at issue).

iv. Incompetency

Disability due to mental incompetency does not toll the FTCA statute of

limitations. See Kelly v. U.S., 554 F.Supp. 1001 (E.D.N.Y. 1983) (Nickerson, J.). But, a

coma may be enough to do so. See Dundon v. U.S., 559 F.Supp. 469 (E.D.N.Y. 1983)

(Bramwell, J.) (coma tolled statute of limitations due to unique circumstances).

The notion of mental incapacity as a toll was discussed in Mayo v. Federal

Government, 2012 WL 4474589 (S.D.N.Y. 2012). If it is a viable doctrine, the plaintiff

needs to provide a “particularized description of how the condition adversely affected

his capacity to function generally or in relationship to her rights.” Id. A “conclusory and

vague claim . . . is manifestly insufficient to justify any further inquiry into tolling.” Id.



v. Insanity

Insanity does not toll the FTCA statute of limitations. See Harrison v. Lutheran

Medical Center, 2010 WL 4038791 (E.D.N.Y. 2010) (Amon, J.); Hollman v. Dept. of

Health & Human Serv., 501 F.Supp. 255 (S.D.N.Y. 1980) (Pollack, J.).

vi. Infancy

Infancy does not toll the FTCA statute of limitations. See Teresa T. v. U.S., 181

Fed.Appx. 77 (2d Cir. 2006); Leonhard v. U.S., 633 F.2d 599, 624 (2d Cir. 1980).

vii. Ignorance About Government Involvement

A plaintiff’s lack of knowledge about government involvement normally does not

toll the statute of limitations. See, e.g., McCord v. Brownsville Development Corp.,

2002 WL 31409398 (E.D.N.Y. 20020) (Block, J.) (“[a]bsent active concealment, a

plaintiff’s ignorance of a person’s status as a federal employee will not excuse plaintiff’s

failure to file an administrative claim”); Van Lieu v. U.S., 542 F.Supp. 862 (N.D.N.Y.

1982) (Munson, J.) (government is “under no obligation to notify every potential claimant

of its identity and involvement” through its employees in all potential legal actions).

F. Computation of Time 28 U.S.C. 2401(b) provides that “a tort claim against the United States shall be

forever barred unless it is presented in writing to the appropriate Federal agency within

two years after such claim accrues or unless action is begun within six months after the



date of mailing, by certified or registered mail, of notice of final denial of the claim by the

agency to which it was presented.”13

i. Two (2) Year Deadline

Courts calculate the two year statute of limitations set forth in 28 U.S.C. 2401(b)

by applying Federal Rule of Procedure 6(a), which: (1) excludes the day of the event

that triggers the time period, (2) counts all intermediate days, including Saturdays,

Sundays and legal holidays, and (3) includes the last day of the time period unless it

falls on a Saturday, Sunday or legal holiday, in which case the deadline is extended to

the next day that is not a Saturday, Sunday or legal holiday.

ii. Six (6) Month Deadline

Generally, courts calculate the six month statute of limitations set forth in 28

U.S.C. 2401(b) by beginning on the day after the agency’s notice of denial is mailed and

running through the day before the same calendar date six months later. See, e.g.,

Crosby v. U.S., 2009 WL 1212268 (W.D.N.Y. 2009) (Arcara, J.) (denial mailed March 7,

2006 meant that limitation period began to run on March 8, 2006 and expired on

September 7, 2006); Hunt v. U.S., 2007 WL 2406912 (N.D.N.Y. 2007) (Sharpe, J.) (6

month limitations period began running on July 19, 2006, the day the denial was

mailed); Santiago v. U.S., 2004 WL 758196 (E.D.N.Y. 2004) (Feuerstein, J.) (“the

13 NB: Even through 28 U.S.C. 2401(b) bars a claim unless “an action is begun within six months” of denial of the claim, at least one Circuit has held that the United States must be served within the six (6) month period. See Weisgal v. Smith, 774 F.2d 1277 (4th Cir. 1985) (“The language of the Rule requires, in plain and clear terms, that the notice be given “within the limitations period.” It includes no reasonable allowance for service beyond that “limitations period.” To include “time for service” as an addition to the six-month limit in the Rule in an FTCA action would demand a rewriting of the Rule.”).



limitations period begins to run on the day after the March 5, 2002 mailing: March 6,

2002. Plaintiffs contend that if the limitations period began on March 6, 2002, the filing

of the September 6, 2002 complaint was within six-months after the date of mailing and

thus timely. However, the six-month limitations period expired on September 5, 2002.”);

Isahack v. U.S., 2001 WL 1456519 (S.D.N.Y. 2001) (Jones, J.) (plaintiff’s claim was

denied on October 18, 1999, which meant that deadline to file suit in federal court was

April 18, 2000); Metro. Prop. & Casualty Ins. Co. v. U.S., 1991 WL 37082 (E.D.N.Y.

1991) (Amon, J.) (denial letter was mailed on February 15, 1990, which made filing

deadline August 15, 1990); Campbell v. U.S. Customs Serv., 1988 WL 31856 (S.D.N.Y.

1988) (Sand, J.) (denial occurred on November 24, 1986, which made deadline to file

May 24, 1987); Murray v. U.S. Postal Serv., 569 F.Supp. 794 (N.D.N.Y. 1983) (McCurn,

J.) (“the limitations period began to run on the day following the mailing: October 27.

The last day of the first month is therefore November 26, and not November 27, which

is the first day of the second month. Accordingly, the last day of the sixth month is April

26 – not April 27 – and an action commenced after April 26 is not commenced ‘within

six months after the date of mailing’ within the meaning of 2401(b)).

Actions commenced more than six months after denial are untimely. See Gist v.

U.S., 2012 WL 140428 (N.D.N.Y. 2012) (McCurn, J.).

iii. Request For Reconsideration

The six-month period for filing an action in federal district court after denial of an

administrative claim will be tolled if the plaintiff files a timely request for reconsideration.

See, e.g., Glover v. U.S., 111 F.Supp.2d 190, 192 (E.D.N.Y. 2000) (Trager, J.) (“six

month period for filing an action in district court after final denial of a claim by the



agency to which it was presented will . . . be tolled by a timely-filed request for

reconsideration by the agency that denied the claim”).

A request for reconsideration is just that. A request for explanation of a denial is

a different thing. See Solomon v. U.S., 566 F.Supp. 1033 (E.D.N.Y. 1983) (request for

explanation of denial did not rise to level of request for reconsideration which would toll

6 month SOL).

iv. Withdrawal of Claim

Where a claimant notifies an agency that s/he is withdrawing the claim and filing

suit, the lawsuit must be commenced within six months of the date of the letter

withdrawing the claim. See Arigo v. U.S., 980 F.2d 1159 (8th Cir. 1992) (suit filed 8

months after claimant wrote DVA that he was withdrawing claim and filing suit in district

court was time-barred, since claimant’s letter constituted a “final denial”).

v. Negotiations

Until there is a final denial, negotiations with an agency may continue indefinitely.

See, e.g., McAllister v. U.S., 925 F.2d 841 (5th Cir. 1991) (no time limit for filing suit if

no final agency action).

vi. Final Denial

A “final settlement offer” may be a final denial, but the “finality” of the settlement

offer must be clear. See Jerves v. U.S., 966 F.2d 517 (9th Cir. 1992) (failure to exhaust

administrative remedies where suit was filed after agency made final settlement offer,

but before it issued a final denial letter, because letter was not of the “take-it-or-leave it

variety”).



A letter containing a settlement offer that also permits the claimant to treat the

letter as a denial may be a final denial. See Heimila v. U.S., 548 F.Supp. 350 (E.D.N.Y.

1982) (Pratt, J.) (suit was time-barred because not filed within six months of agency

letter that gave plaintiff two choices, e.g., accept the settlement offer or treat the letter

as a denial of claim).

Agency failure to act on a claim does not constitute denial and start six months

running. See, e.g., Stahl v. U.S., 732 F.Supp. 86 (D. Kan. 1990) (“government agency’s

failure to issue decision within six months after claim is filed cannot serve as notice of a

final denial as contemplated in Section 2401(b)”).

G. AMENDMENTS

A valid administrative tort claim may be amended at any time before final agency

action. See 28 C.F.R. 14.2(c). Whether an amendment is accepted depends upon the

timing and substance of the proposed amendment. Also, an amendment may restart

the 6 month waiting period. See 28 C.F.R. 14.2(c).

H. EQUITABLE TOLLING

Historically, equitable tolling was available only where a claimant was “induced or

tricked by his adversary’s conduct into allowing the filing deadline to pass” or where

there were “extraordinary circumstances.” Irwin v. Veterans Admin., 498 U.S. 89, 96

(1990); Holland v. Florida, 130 S.Ct. 2549 (2010); Veltri v. Building Serv., 393 F.3d 318

(2d Cir. 2004) (equitable tolling “an extraordinary measure”); Doe v. Menefee, 391 F.3d

147 (2d Cir. 2004) (equitable tolling may be invoked provided the plaintiff can “establish



that extraordinary circumstances prevented him from filing his claim on time, and that he

acted with reasonable diligence throughout the period he seeks to toll”).

Litigation in this area centered around whether a claimant had been induced,

tricked, or misled in some fashion about his or her rights, or whether/how to proceed.

See, e.g., Estate of George v. VA, 2011 WL 5177345 (W.D.N.Y. 2011) (Larimer, J.) (no

toll as no evidence of government misconduct); Genao v. U.S., 2010 WL 3328017

(E.D.N.Y. 2010) (Gershon, J.) (tolling based upon extraordinary circumstances and

attorney diligence); Jackson v. U.S., 488 F.Supp.2d 191 (N.D.N.Y. 2007) (Kahn, J.)

(tolling where VA failed to inform claimant about proper procedure to file SF95); James

v. U.S., 2000 WL 1132035 (S.D.N.Y. 2000) (Jones, J.) (permitting late filing where,

despite requests for information, involuntarily committed pro se plaintiff was not told

about procedure by hospital employees until too late).

Before 1990, federal courts almost uniformly held that the FTCA’s two-year and

six-month limitations periods were not subject to equitable tolling (see, e.g., Leonhard v.

U.S., 833 F.2d 599 (2d Cir. 1980), cert. denied, 451 U.S. 908 (1981); Lien v. Beehner,

453 F.Supp. 604 (N.D.N.Y. 1978) (Munson, J.); Hoch v. Carter, 242 F.Supp. 863

(S.D.N.Y. 1965) (Herlands, J.)).

The landscape changed in 1990, when the Supreme Court addressed equitable

tolling in Irwin v. Department of Veterans Affairs (498 U.S. 89 (1990)). At issue in Irwin

was whether the plaintiff could maintain a district court action for violation of Title VII of

the Civil Rights Act of 1984 when he did not commence suit within 30 days after the

issuance of a right-to-sue letter by Equal Employment Opportunity Commission

(EEOC). Specifically, the plaintiff alleged that, while his attorney received the letter on



March 24, 1987, he did not receive the EEOC’s right-to-sue letter until he returned from

travel outside of the country on April 10, 1987. He argued that the action was viable

because he commenced suit within 30 days of April 10, 1987 and, moreover, that any

error on his part may be excused under equitable tolling principles. The district court

dismissed the complaint and the Court of Appeals for the Fifth Circuit affirmed (874 F.2d

1092 (1989)).

The Supreme Court granted certiorari to determine when the 30 day period under

§2000e-16(c) begins to run and to resolve a Circuit Court conflict over whether late-filed

claims are jurisdictionally barred. The Court noted that “[t]ime requirements in lawsuits

between private litigants are customarily subject to equitable tolling,” and that “we think

that making the rule of equitable tolling applicable to suits against the Government, in

the same way that it is applicable to private suits, amounts to little, if any, broadening of

the congressional waiver” of sovereign immunity.” While the Court concluded that the

plaintiff’s claim was properly dismissed (due to a “garden variety claim of excusable

neglect) it held that “the same rebuttable presumption of equitable tolling applicable to

suits against private defendants should also apply to suits against the United States.

Congress, of course, may provide otherwise if it wishes to do so.”

After Irwin, most courts held that FTCA limitations periods are not jurisdictional

and could be equitably tolled (see, e.g., Kronisch v. U.S., 150 F.3d 12 (2d Cir. 1998);

Hyatt v. U.S., 968 F.Supp. 96 (E.D.N.Y. 1997) (Johnson, J.); Long v. Card, 882 F.Supp.

1285 (E.D.N.Y. 1995) (Seybert, J.)).



Enter the Supreme Court decisions in United States v. Brockamp (519 U.S. 347

(1997)) and United States v. Beggerly (524 U.S. 38 (1998)), which cast doubt on the

availability of equitable tolling in FTCA cases. In Brockamp, the Court rejected the

plaintiff’s reliance upon Irwin, and held that Congress did not intend the equitable tolling

doctrine to apply to §6511 of the Internal Revenue Code of 1986. In Beggerly, the

Court also rejected the plaintiff’s reliance upon Irwin, and held that equitable tolling was

not available in a suit brought pursuant to the Quiet Title Act. Following Brockamp and

Beggerly, courts took a number of approaches to equitable tolling. Some appear to

have altogether ignored the decisions, while others distinguished the FTCA from the

statutes at issue in Brockamp and Beggerly, or crafted case-specific justifications to

keep equitable tolling alive. Regardless, doubt remained.

On April 22, 2015, the Supreme Court issued a seminal decision in United States

v. Kwai Fun Wong (575 U.S. __ (2015)). In sum, equitable tolling is alive and well in

FTCA cases.

Two cases were before the Court in Wong. In the first (U.S. v. Wong), the

plaintiff alleged that she was falsely imprisoned for five days by the Immigration and

Naturalization Service (INS). Consistent with the FTCA, she presented a claim to the

INS within two years of the alleged wrongdoing. INS denied the claim on December 3,

2001. Under the FTCA, Wong had until June 3, 2002 to bring her tort claim in federal

court. Before INS denied her claim, the plaintiff filed suit in district court asserting

various non-FTCA claims against the Government arising out of the same misconduct.



When her claim was denied, the plaintiff moved in mid-November of 2001 to amend the

complaint to include her tort claim. On April 5, 2002, a Magistrate Judge recommended

granting leave to amend, but the district court did not adopt the Magistrate’s

recommendation until June 25, 2012 – twenty-two (22) days after expiration of the

FTCA’s six-month deadline. The Government moved to dismiss the tort claim. Initially,

the district court rejected the motion, recognizing equitable tolling for the time between

the Magistrate’s recommendation and the district court’s order. Several years later, the

Government moved for reconsideration arguing that the 2401(b) six-month time-period

was jurisdictional and, in turn, not subject to equitable tolling. The district court

dismissed the plaintiff’s claim, but the Ninth Circuit heard the case en banc to address

an intra-circuit conflict on the issue. The en banc court held that the six-month time limit

was not jurisdictional and that equitable tolling is available (see Wong v. Beebe, 732

F.3d 1030 (2013)).

In the second case (U.S. v. June), the plaintiff filed a wrongful death action

against the State of Arizona for the 2005 death of Andrew Booth, who was killed in a

collision that occurred after his car crossed through a cable median barrier. Years into

the state court litigation, the plaintiff learned that the Federal Highway Administration

(FHWA) had approved installation of the barrier despite knowledge that the barrier had

not been crash tested. In 2010, the plaintiff presented a tort claim to the FHWA. After

the claim was denied, the plaintiff filed suit in district court and argued that equitable

tolling should apply because the Government concealed the absence of crash testing.

The district court dismissed the action as untimely under the FTCA’s two-year bar, but

the Ninth Circuit reversed in light of its recent decision in Wong v. Beebe.



The Supreme Court granted certiorari in both cases (see 573 U.S. __ (2014)), to

resolve a circuit split about whether courts may equitably toll §2401(b)’s two-year and

six-month time limits (compare, e.g., In re FEMA Trailer Formaldehyde Prods. Liability

Litigation, 646 F.3d 185 (5th Cir. 2011) (tolling unavailable), with Arteaga v. U.S., 711

F.3d 828 (7th Cir. 2013 (tolling available).

The Court’s analysis in Wong began with a review of Irwin including, specifically,

the notion of the “rebuttable presumption” of equitable tolling. “One way to meet that

burden – and the way the Government pursued here – is to show that Congress made

the time bar at issue jurisdictional. Where that is so, a litigant’s failure to comply with

the bar deprives a court of all authority to hear a case. Hence, a court must enforce the

limitation even if the other party has waived any timeliness objection . . . [a]nd, more

crucially here, a court must do so even if equitable considerations would support

extending the prescribed time period.”

Noting that the “Government must clear a high bar to establish that a statute of

limitations is jurisdictional,” and that “most time bars are nonjursdictional,” the Court

held that in order for a deadline to be jurisdictional, Congress “must do something

special, beyond setting a exception-free deadline, to tag a statute of limitations as

jurisdictional and so prohibit the court from tolling it.” In the case of the FTCA,

“Congress did nothing of that kind.



Further, “2401(b)’s text speaks only to a claim’s timeliness, not to a court’s

power. It states that a tort claim against the United States shall be forever barred

unless it is presented to the agency within two years . . . or unless action is begun within

six months of the agency’s denial of the claim. That is mundane statute-of-limitations

language, saying only what every time bar, by definition, must: that after a certain time a

claim is barred. The language is mandatory – “shall” be barred – but (as just noted) this

is true of most such statutes, and we have consistently found it of no consequence.”

In closing, Justice Kagan noted “[a]nd so we wind up back where we started, with

Irwin’s “general rule” that equitable tolling is available in suits against the Government.

The justification the Government offers for departing form that principle fails: Section

2401(b) is not a jurisdictional requirement. The time limits in the FTCA are just time

limits, nothing more. Even though they govern litigation against the Government, a

court can toll them on equitable grounds.”

A dissent authored by Justice Alito, and joined by Chief Justice Roberts, and

Justices Scalia and Thomas, noted that the FTCA’s filing deadlines are jurisdictional

because the Act states that untimely claims “shall be forever barred” and this is not

generally understood to mean “should be allowed sometimes.”



Despite the Wong decision, counsel should review A.Q.C. ex rel. Castillo v. U.S.,

656 F.3d 135 (2d Cir. 2011), as it appears to place any attorney with any FTCA

experience on constructive notice of the potential for a federal government actor and

requires counsel, as part of standard diligence, to take affirmative steps to identify the

federal actor. See A.Q.C., 656 F.3d at 145 (“it is hard to understand how any lawyer . . .

would not investigate the federal nature of potential defendants as part of standard due

diligence in every medical malpractice case”).

Fortunately, the apparently unforgiving holding in A.Q.C. was clarified and

softened by the Second Circuit in Phillips v. Generations Family Medical Center, 723

F.3d 144 (2d Cir. 2013) (“[a]lthough this statement, particularly given that it refers to any

lawyer and every malpractice case, might at first blush appear to require that

malpractice lawyers always call the federal hotline or search the HHS database, we do

not agree that A.Q.C. established such a per se rule. As an initial matter, A.Q.C. did not

purport to establish a blanket rule of law but instead merely reviewed the district court’s

decision for abuse of discretion” and was premised upon “certain facts”).

II. THE FEDERAL ACTION

A. ELEMENTS OF COMPLAINT A FTCA complaint should contain customary details about the parties and claims

for purposes of jurisdiction, venue and stating a cause of action. In addition, the

complaint must contain an allegation about exhaustion of administrative remedies. See,

e.g., Altman v. Connally, 456 F.2d 1114 (2d Cir. 1972) (compliant deficient because it

“failed to allege the presentation of the claim to the appropriate federal agency and a

final disposition of the claim by that agency as required by 28 U.S.C. 2675”).



B. SERVICE

Rule 4(i)(1) of the Federal Rules of Civil Procedure requires that a copy of a filed

summons and complaint be served upon (1) the United States Attorney General, and

(2) the United States Attorney for the district in which the action is brought.

Service upon the Attorney General is accomplished by mailing the summons and

complaint via registered/certified mail to Washington, D.C. Service upon the

appropriate United States Attorney is accomplished by (1) serving an Assistant United

States Attorney, (2) serving clerical staff designated in writing with the court, or (3) by

mailing the summons and complaint via registered/certified mail.

Service must be made on both the United States Attorney and the Attorney

General. This is a jurisdictional requirement. Further, the 120 day deadline to complete

service is strictly enforced. See McGregor v. U.S., 933 F.2d 156 (2d Cir. 1991)

(affirming dismissal of complaint where widow failed to serve Attorney General within

120 days after filing the complaint – despite timely service upon United States Attorney

and a request for additional time to serve Attorney General – because delay was

without “good cause”).

C. SUBSTANTIVE LAW A tort is defined by the law of the state where the tort occurred. See 28 U.S.C.

2674. “Damages in FTCA actions are determined by the law of the state in which the

tort occurred.” Moe v. U.S., 2010 WL 5072108 (W.D.N.Y. 2010) (Arcara, J.).

If state law does not permit recovery under the circumstances, the United States

will not be liable.



D. PROPER DEFENDANT

The United States is the only proper defendant in an FTCA action. If an

individual employee or specific agency is named, the United States shall be substituted

as the sole defendant. See 28 U.S.C. 2679.

E. SUPPLEMENTAL JURISDICTION

Under 28 U.S.C. 1367(a), district courts have “supplemental jurisdiction over all

other claims that are so related to claims within such original jurisdiction that they form

part of the same case or controversy under Article III of the United States Constitution.”

While a court may, in its discretion, exercise supplemental jurisdiction over state

law claims, even where it has dismissed all claims over which it had original jurisdiction

(see Cushing v. Moore, 970 F.2d 1103 (2d Cir. 1992)), a court “cannot exercise

supplemental jurisdiction unless there is first a proper basis for original federal

jurisdiction.” Nowack v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d

Cir. 1996).

F. SCOPE OF EMPLOYMENT

For there to be FTCA liability, the negligent actor must be a federal employee

acting within the course and scope of his or her employment. See 28 U.S.C.

1346(b)(1), 2675, 2672 and 2679. The federal government has no liability for the acts

of omission and/or commission of the proverbial “rogue agent,” or those of independent

contractors. See 28 U.S.C. 2671.



Whether a given individual is an employee of the United States is determined by

federal law. The test to determine if an individual is an employee of the United States is

the government’s “right to control the details of the day-to-day performance of duty” of

the employee. See Logue v. U.S., 412 U.S. 521 (1973) (strict control test); Roditis v.

U.S., 122 F.3d 108 (2d Cir. 1997) (“Thus, as a general rule, sovereign immunity

precludes suits against the United States for injuries caused by its independent

contractors.”); Coalts-Young v. Glens Falls Hosp., 2014 WL 6474855 (N.D.N.Y. 2014

(Sharpe, J.) (physician who provided coverage at Glens Falls Hospital was an employee

of the government; physician was employed by Government on days at issue, was

scheduled by Government to work, and was paid by the Government for the shifts);

Haskin v. U.S., 2013 WL 4761110 (E.D.N.Y. 2013) (explaining that government cannot

be held liable under the FTCA for negligent actions of an independent contractor);

Ramos v. Bronx-Lebanon Hospital, 2013 WL 93510 (S.D.N.Y. 2013) (despite nurses’

employment by Bronx Lebanon Integrated Services System and Bronx Lebanon

Hospital Center and absence of direct contract between them and government, they

were employees of Public Health Service as employees of subgrantee of federal funds

under 42 U.S.C. 254b); Johnson v. U.S., 2012 WL 2921542 (N.D.N.Y. 2012) (stating

rule); Rosenblatt v. St. John’s Episcopal Hosp., 2012 WL 294518 (E.D.N.Y. 2012) (“The

FTCA defines ‘employee of the Government’ as ‘officers or employees of any federal

agency . . . and persons acting on behalf of a federal agency in an official capacity,

temporarily or permanently in the service of the United States . . . .”); Grace v. U.S., 754

F.Supp.2d 585 (W.D.N.Y. 2010) (Siragusa, J.) (ophthalmologist providing care at



Rochester VA clinic under a contract between University of Rochester and VA was an

independent contractor).

Whether a given individual was acting within the scope of his or her federal

employment is an issue of state tort law. See Williams v. U.S., 350 U.S., 857 (1955);

James v. U.S., 2014 WL 1055460 (W.D.N.Y. 2014) (second year medical resident who

was “generally obligated” as a VA hospital employee was not in scope of employment

on way from lecture to optional dinner at Anchor Bar because on day of accident she

was not on-call, did not provide care to patients, and did not review charts).

The United States waiver of immunity under the FTCA is to be strictly construed

in favor of the government. See, e.g., Liranzo v. U.S., 690 F.3d 78 (2d Cir. 2012).

G. BARS TO RECOVERY

i. Discretionary Function and Due Care

Government policy decisions cannot be subjected to tort suit. The FTCA

provides that no claims “based upon an act or omission of an employee of the

Government, exercising due care, in the execution of a statute or regulation, whether or

not such a statute or regulation be valid, or based based upon the exercise or

performance or the failure to exercise or perform a discretionary function or duty on the

part of a federal agency or an employee of the Government, whether or not the

discretion involved be abused.” 28 U.S.C. 2680(a).

The purpose of the discretionary function exception is to “prevent ‘judicial second

guessing’ of legislative and administrative decisions grounded in social, economic, and

political policy through the medium of an action in tort.” Berghoff v. U.S., 737 F.Supp.

199, 202 (S.D.N.Y. 1989) (Mukasey, J.) (quoting U.S. v. S.A. Empresa de Viacao Aerea



Rio Grandense, 467 U.S., 797 (1984)); see Reichart v. U.S., 408 Fed.Appx. 441 (2d Cir.

2011); Yesina v. U.S., 911 F.Supp.2d 217 (E.D.N.Y. 2012) (supervision of independent

contractor and property involved was a discretionary function).

ii. FECA

FECA provides compensation where a federal employee is killed or injured “while

in the performance of . . . duty.” 5 U.S.C. 8101-8151 (1994). United States employees

are not proper claimants when covered by the Federal Employees Compensation Act

(“FECA”). See Mathirampuzha v. Potter, 548 F.3d 70 (2d Cir. 2008); Doe v. U.S., 914

F.Supp. 945 (W.D.N.Y. 1996) (Curtin, J.).

iii. Feres

United States service members are not proper claimants for personal injury or

death that are incident to service. See Feres v. U.S., 340 U.S. 135 (1950). The Feres

Doctrine extends to derivative spousal claims. See In re Agent Orange Product Liability

Litigation, 580 F.Supp. 1242 (E.D.N.Y. 1984) (Weinstein, J.).

iv. Intentional Tort Claims

As a general rule, intentional and constitutional tort claims are not permitted

under the FTCA. See, e.g., Mortise v. U.S., 102 F.3d 693 (2d Cir. 1996) (no assault

and battery); Koester v. Lanfranchi, 288 Fed.Appx. 764 (2d Cir. 2008) (no false arrest

and imprisonment); Allamby v. U.S., 207 Fed.Appx. 7 (2d Cir. 2006) (no malicious

prosecution); Stewart v. U.S., 1996 WL 387218 (2d Cir. 1996)(no abuse of process); Hill

v. Donoghue, 2011 WL 3919388 (E.D.N.Y. 2011) (Seybert, J.) (no libel/slander).



While it was somewhat uncertain until mid-2013, it is now clear that a cause of

action exists against the government for medical battery (i.e., lack of informed consent).

See Levin v. U.S., 133 S.Ct. 1224 (2013) (United States could be liable for surgeon’s

performance of cataract surgery after patient withdrew consent because FTCA

intentional tort exception was inapplicable). If plaintiffs intend to pursue a claim for lack

of informed consent, it should be clear from the content of the administrative notice

document or it may be dismissed. See, e.g., Soriano v. U.S., 2013 WL 3316132

(S.D.N.Y. 2013) (informed consent claim was viable as sufficient facts were alleged in

claim to put government on notice).

v. Strict Liability

The FTCA includes only liability for negligent acts and excludes absolute (i.e.,

strict) liability. See, e.g., Dalehite v. U.S., 346 U.S. 15 (1953); McCutcheon v. U.S.,

1996 WL 607083 (W.D.N.Y. 1996) (Elfvin, J.) (New York’s non-delegable duty for

landlord to provide safe ingress and egress is strict liability statute that is inapplicable to

HUD).

H. PROSECUTION Failure to prosecute a claim may result in dismissal. Factors the court may

consider include: (1) duration of the delay, (2) notice of potential dismissal, (3) prejudice

to the defendant, (4) balance between calendar congestion and due process rights, and

(5) consideration of lesser sanctions. See, e.g., Ransom v. U.S., 2011 WL 2893067

(N.D.N.Y. 2011) (D’Agostino, J.) (weighing factors and granting government’s motion for

summary judgment).



I. AVAILABLE DAMAGES

Generally, relief is limited to monetary damages available under relevant state

law. Equitable relief is unavailable. Further, the United States is not liable for punitive

damages or prejudgment interest. See 28 U.S.C. 2674. Post-judgment interest is

permitted.

The amount of recovery cannot exceed the amount claimed in the administrative

claim “unless the increased amount is based upon newly discovered evidence not

reasonably discoverable at the time of presenting the claim to the federal agency, or

upon allegation and proof of intervening facts, relating to the amount of the claim.” 28

U.S.C. 2675(b); see Malmberg v. U.S., 2012 WL 4953091 (N.D.N.Y. 2012) (no

modification of ad damnum clause from $6,000,000 to $25,000,000 despite progression

of plaintiff’s condition to paralysis involving all four extremities after claim was presented

because “he has failed to demonstrate that this worst case scenario was not reasonably

foreseeable at the time that he filed his administrative claim”); McFarlane v. U.S., 684

F.Supp. 780 (E.D.N.Y. 1988) (Dearie, J.) (cannot raise ad damnum where increase

based upon medical diagnosis made prior to original claim); compare Lane v. U.S.,

1996 WL 426312 (S.D.N.Y. 1996) (Francis, J.) (permitting amendment of ad damnum

from $1 million to $5 million as results of future surgery were unknown, even though

claimant knew future surgery was inevitable).

The government receives the benefit of state tort reform statutes that place

monetary limitations on a recovery. See Ingraham v. U.S., 808 F.2d 1075 (5th Cir.

1987) (monetary limitations on damages should be pleaded as an affirmative defense).



III. RESOLUTION

A. Settlement Authority

An agency must seek DOJ approval for settlements above statutory authority.14

Note, however, (1) that DOJ will not be consulted absent a recommendation from an

agency, and (2) an agency is not required to make a recommendation. Within the DOJ,

the Torts Branch receives agency recommendations for settlement above statutory

authority levels. The Torts Branch Director has $1,000,000 in settlement authority.

Generally, a United States Attorney has $1,000,000 in settlement authority. See

28 C.F.R. 0.168(d)(2). An Assistant Attorney General, Civil Division, has $2,000,000 in

settlement authority. See 28 C.F.R. 0.172(b) and 0.160. An Associate/Reporting

Attorney General has unlimited settlement authority. See 28 C.F.R. 0.161.

B. Release

A settlement cannot be set aside except upon a showing of fraud, bad faith, or

willful effort to mislead, or lack of meeting of the minds. See Barrett v. U.S., 622

F.Supp. 574 (S.D.N.Y. 1985) (Motley, J.), further proceedings, 660 F.Supp. 1291

(S.D.N.Y. 1987) (1955 release set aside as role of U.S. in tort was concealed and U.S.

was not a party to the action).

14 Agencies have different levels of settlement authority. The default level of authority is $25,000.00. However, pursuant to 28 U.S.C. 2672, the Attorney General is authorized to create higher levels of authority on an agency-by-agency basis. The Army, Navy, Air Force, Postmaster General, Secretary of Defense, Department of Veterans Affairs, and Department of Health and Human Services each have settlement authority of $200,000.00. The Department of Transportation has $100,000.00 in settlement authority. The Department of Homeland Security has $50,000.00 in settlement authority. See 28 C.F.R., Appendix to Part 14.



C. Infant Claims

Resolution of an infant’s administrative claim is invalid in the absence of state

court approval of the settlement. See, e.g., Reo v. U.S., 98 F.3d 73 (3d. Cir. 1996)

(settlement of administrative claim of 3 year old for $2,500 by USPS was not binding, as

it was not approved by New Jersey court).

D. Attorney’s Fees

Attorney’s fees are limited to 20% of an administrative settlement and 25% of a

settlement/award from a lawsuit. See 28 U.S.C. 2678; see also Gerow v. U.S., 1997

WL 538910 (N.D.N.Y. 1997) (Pooler, J.) (notwithstanding statutory fee of 25%, district

court has authority to fix attorney’s fees to safeguard the interests of an infant).

Generally, attorneys are paid by separate check (i.e., separate from the claimant’s

check).

Any attorney who charges, demands, receives, or collects for services rendered

in connection with a FTCA claim any amount in excess of that allowed under 28 U.S.C.

2678 shall be fined not more than $2,000 or imprisoned not more than one year, or

both.



III. FTCA STATUTES AND REGULATIONS

A. FTCA Statutes 28 U.S.C. §1346. United States as defendant (b)(1) Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1402. United States as defendant (b) Any civil action on a tort claim against the United States under subsection (b) of section 1346 of this title may be prosecuted only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred. 28 U.S.C. § 2401. Time for commencing action against United States (b) A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. 28 U.S.C. § 2402. Jury trial in actions against United States Subject to chapter 179 of this title, any action against the United States under section 1346 shall be tried by the court without a jury, except that any action against the United States under section 1346(a)(1) shall, at the request of either party to such action, be tried by the court with a jury. 28 U.S.C. § 2671. Definitions As used in this chapter and sections 1346(b) and 2401(b) of this title, the term “Federal agency” includes the executive departments, the judicial and legislative branches, the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States.



“Employee of the government” includes (1) officers or employees of any federal agency, members of the military or naval forces of the United States, members of the National Guard while engaged in training or duty under section 115, 316, 502, 503, 504, or 505 of title 32, and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation, and (2) any officer or employee of a Federal public defender organization, except when such officer or employee performs professional services in the course of providing representation under section 3006A of title 18. “Acting within the scope of his office or employment”, in the case of a member of the military or naval forces of the United States or a member of the National Guard as defined in section 101(3) of title 32, means acting in line of duty. 28 U.S.C. § 2672. Administrative adjustment of claims The head of each Federal agency or his designee, in accordance with regulations prescribed by the Attorney General, may consider, ascertain, adjust, determine, compromise, and settle any claim for money damages against the United States for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the agency while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred: Provided, That any award, compromise, or settlement in excess of $25,000 shall be effected only with the prior written approval of the Attorney General or his designee. Notwithstanding the proviso contained in the preceding sentence, any award, compromise, or settlement may be effected without the prior written approval of the Attorney General or his or her designee, to the extent that the Attorney General delegates to the head of the agency the authority to make such award, compromise, or settlement. Such delegations may not exceed the authority delegated by the Attorney General to the United States attorneys to settle claims for money damages against the United States. Each Federal agency may use arbitration, or other alternative means of dispute resolution under the provisions of subchapter IV of chapter 5 of title 5, to settle any tort claim against the United States, to the extent of the agency's authority to award, compromise, or settle such claim without the prior written approval of the Attorney General or his or her designee. Subject to the provisions of this title relating to civil actions on tort claims against the United States, any such award, compromise, settlement, or determination shall be final and conclusive on all officers of the Government, except when procured by means of fraud. Any award, compromise, or settlement in an amount of $2,500 or less made pursuant to this section shall be paid by the head of the Federal agency concerned out of



appropriations available to that agency. Payment of any award, compromise, or settlement in an amount in excess of $2,500 made pursuant to this section or made by the Attorney General in any amount pursuant to section 2677 of this title shall be paid in a manner similar to judgments and compromises in like causes and appropriations or funds available for the payment of such judgments and compromises are hereby made available for the payment of awards, compromises, or settlements under this chapter. The acceptance by the claimant of any such award, compromise, or settlement shall be final and conclusive on the claimant, and shall constitute a complete release of any claim against the United States and against the employee of the government whose act or omission gave rise to the claim, by reason of the same subject matter. 28 U.S.C. § 2673. Reports to Congress The head of each federal agency shall report annually to Congress all claims paid by it under section 2672 of this title, stating the name of each claimant, the amount claimed, the amount awarded, and a brief description of the claim. 28 U.S.C. § 2674. Liability of United States The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages. If, however, in any case wherein death was caused, the law of the place where the act or omission complained of occurred provides, or has been construed to provide, for damages only punitive in nature, the United States shall be liable for actual or compensatory damages, measured by the pecuniary injuries resulting from such death to the persons respectively, for whose benefit the action was brought, in lieu thereof. With respect to any claim under this chapter, the United States shall be entitled to assert any defense based upon judicial or legislative immunity which otherwise would have been available to the employee of the United States whose act or omission gave rise to the claim, as well as any other defenses to which the United States is entitled. With respect to any claim to which this section applies, the Tennessee Valley Authority shall be entitled to assert any defense which otherwise would have been available to the employee based upon judicial or legislative immunity, which otherwise would have been available to the employee of the Tennessee Valley Authority whose act or omission gave rise to the claim as well as any other defenses to which the Tennessee Valley Authority is entitled under this chapter. 28 U.S.C. § 2675. Disposition by federal agency as prerequisite; evidence



(a) An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. The provisions of this subsection shall not apply to such claims as may be asserted under the Federal Rules of Civil Procedure by third party complaint, cross-claim, or counterclaim. (b) Action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim. (c) Disposition of any claim by the Attorney General or other head of a federal agency shall not be competent evidence of liability or amount of damages. 28 U.S.C. § 2676. Judgment as bar The judgment in an action under section 1346(b) of this title shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim. 28 U.S.C. § 2677. Compromise The Attorney General or his designee may arbitrate, compromise, or settle any claim cognizable under section 1346(b) of this title, after the commencement of an action thereon. 28 U.S.C. § 2678. Attorney fees; penalty No attorney shall charge, demand, receive, or collect for services rendered, fees in excess of 25 per centum of any judgment rendered pursuant to section 1346(b) of this title or any settlement made pursuant to section 2677 of this title, or in excess of 20 per centum of any award, compromise, or settlement made pursuant to section 2672 of this title.



Any attorney who charges, demands, receives, or collects for services rendered in connection with such claim any amount in excess of that allowed under this section, if recovery be had, shall be fined not more than $2,000 or imprisoned not more than one year, or both. 28 U.S.C. § 2679. Exclusiveness of remedy (a) The authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under section 1346(b) of this title, and the remedies provided by this title in such cases shall be exclusive. (b)(1) The remedy against the United States provided by sections 1346(b) and 2672 of this title for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim or against the estate of such employee. Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee's estate is precluded without regard to when the act or omission occurred.

(2) Paragraph (1) does not extend or apply to a civil action against an employee of the Government—

(A) which is brought for a violation of the Constitution of the United States, or

(B) which is brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized.

(c) The Attorney General shall defend any civil action or proceeding brought in any court against any employee of the Government or his estate for any such damage or injury. The employee against whom such civil action or proceeding is brought shall deliver within such time after date of service or knowledge of service as determined by the Attorney General, all process served upon him or an attested true copy thereof to his immediate superior or to whomever was designated by the head of his department to receive such papers and such person shall promptly furnish copies of the pleadings and process therein to the United States attorney for the district embracing the place wherein the proceeding is brought, to the Attorney General, and to the head of his employing Federal agency. (d)(1) Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under



the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.

(2) Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States for the district and division embracing the place in which the action or proceeding is pending. Such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. This certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal.

(3) In the event that the Attorney General has refused to certify scope of office or employment under this section, the employee may at any time before trial petition the court to find and certify that the employee was acting within the scope of his office or employment. Upon such certification by the court, such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. A copy of the petition shall be served upon the United States in accordance with the provisions of Rule 4(d)(4) of the Federal Rules of Civil Procedure. In the event the petition is filed in a civil action or proceeding pending in a State court, the action or proceeding may be removed without bond by the Attorney General to the district court of the United States for the district and division embracing the place in which it is pending. If, in considering the petition, the district court determines that the employee was not acting within the scope of his office or employment, the action or proceeding shall be remanded to the State court.

(4) Upon certification, any action or proceeding subject to paragraph (1), (2), or (3) shall proceed in the same manner as any action against the United States filed pursuant to section 1346(b) of this title and shall be subject to the limitations and exceptions applicable to those actions.

(5) Whenever an action or proceeding in which the United States is substituted as the party defendant under this subsection is dismissed for failure first to present a claim pursuant to section 2675(a) of this title, such a claim shall be deemed to be timely presented under section 2401(b) of this title if—

(A) the claim would have been timely had it been filed on the date the underlying civil action was commenced, and



(B) the claim is presented to the appropriate Federal agency within 60 days after dismissal of the civil action.

(e) The Attorney General may compromise or settle any claim asserted in such civil action or proceeding in the manner provided in section 2677, and with the same effect. 28 U.S.C. § 2680. Exceptions The provisions of this chapter and section 1346(b) of this title shall not apply to— (a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. (b) Any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter. (c) Any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer, except that the provisions of this chapter and section 1346(b) of this title apply to any claim based on injury or loss of goods, merchandise, or other property, while in the possession of any officer of customs or excise or any other law enforcement officer, if—

(1) the property was seized for the purpose of forfeiture under any provision of Federal law providing for the forfeiture of property other than as a sentence imposed upon conviction of a criminal offense; (2) the interest of the claimant was not forfeited; (3) the interest of the claimant was not remitted or mitigated (if the property was subject to forfeiture); and (4) the claimant was not convicted of a crime for which the interest of the claimant in the property was subject to forfeiture under a Federal criminal forfeiture law.

(d) Any claim for which a remedy is provided by chapter 309 or 311 of title 46 relating to claims or suits in admiralty against the United States. (e) Any claim arising out of an act or omission of any employee of the Government in administering the provisions of sections 1-31 of Title 50, Appendix.



(f) Any claim for damages caused by the imposition or establishment of a quarantine by the United States. [(g) Repealed. Sept. 26, 1950, c. 1049, § 13(5), 64 Stat. 1043.] (h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, “investigative or law enforcement officer” means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law. (i) Any claim for damages caused by the fiscal operations of the Treasury or by the regulation of the monetary system. (j) Any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war. (k) Any claim arising in a foreign country. (l) Any claim arising from the activities of the Tennessee Valley Authority. (m) Any claim arising from the activities of the Panama Canal Company. (n) Any claim arising from the activities of a Federal land bank, a Federal intermediate credit bank, or a bank for cooperatives.



B. FTCA Regulations 28 C.F.R. Part 14. Administrative Claims Under Federal Tort Claims Act 28 C.F.R. § 14.1 Scope of regulations. These regulations shall apply only to claims asserted under the Federal Tort Claims Act. The terms Federal agency and agency, as used in this part, include the executive departments, the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States but do not include any contractor with the United States. 28 C.F.R. § 14.2 Administrative claim; when presented. (a) For purposes of the provisions of 28 U.S.C. 2401(b), 2672, and 2675, a claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident; and the title or legal capacity of the person signing, and is accompanied by evidence of his authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian, or other representative. (b)(1) A claim shall be presented to the Federal agency whose activities gave rise to the claim. When a claim is presented to any other Federal agency, that agency shall transfer it forthwith to the appropriate agency, if the proper agency can be identified from the claim, and advise the claimant of the transfer. If transfer is not feasible the claim shall be returned to the claimant. The fact of transfer shall not, in itself, preclude further transfer, return of the claim to the claimant or other appropriate disposition of the claim. A claim shall be presented as required by 28 U.S.C. 2401(b) as of the date it is received by the appropriate agency.

(2) When more than one Federal agency is or may be involved in the events giving rise to the claim, an agency with which the claim is filed shall contact all other affected agencies in order to designate the single agency which will thereafter investigate and decide the merits of the claim. In the event that an agreed upon designation cannot be made by the affected agencies, the Department of Justice shall be consulted and will thereafter designate an agency to investigate and decide the merits of the claim. Once a determination has been made, the designated agency shall notify the claimant that all future correspondence concerning the claim shall be directed to that Federal agency. All involved Federal agencies may agree either to conduct their own administrative reviews and to coordinate the results or to have the investigations conducted by the designated Federal agency, but, in either event, the designated Federal agency will be responsible for the final determination of the claim.



(3) A claimant presenting a claim arising from an incident to more than one agency should identify each agency to which the claim is submitted at the time each claim is presented. Where a claim arising from an incident is presented to more than one Federal agency without any indication that more than one agency is involved, and any one of the concerned Federal agencies takes final action on that claim, the final action thus taken is conclusive on the claims presented to the other agencies in regard to the time required for filing suit set forth in 28 U.S.C. 2401(b). However, if a second involved Federal agency subsequently desires to take further action with a view towards settling the claim the second Federal agency may treat the matter as a request for reconsideration of the final denial under 28 CFR 14.9(b), unless suit has been filed in the interim, and so advise the claimant.

(4) If, after an agency final denial, the claimant files a claim arising out of the same incident with a different Federal agency, the new submission of the claim will not toll the requirement of 28 U.S.C. 2401(b) that suit must be filed within six months of the final denial by the first agency, unless the second agency specifically and explicitly treats the second submission as a request for reconsideration under 28 CFR 14.9(b) and so advises the claimant.

(c) A claim presented in compliance with paragraph (a) of this section may be amended by the claimant at any time prior to final agency action or prior to the exercise of the claimant's option under 28 U.S.C. 2675(a). Amendments shall be submitted in writing and signed by the claimant or his duly authorized agent or legal representative. Upon the timely filing of an amendment to a pending claim, the agency shall have six months in which to make a final disposition of the claim as amended and the claimant's option under 28 U.S.C. 2675(a) shall not accrue until six months after the filing of an amendment. 28 C.F.R. § 14.3 Administrative claim; who may file. (a) A claim for injury to or loss of property may be presented by the owner of the property, his duly authorized agent or legal representative. (b) A claim for personal injury may be presented by the injured person, his duly authorized agent, or legal representative. (c) A claim based on death may be presented by the executor or administrator of the decedent's estate, or by any other person legally entitled to assert such a claim in accordance with applicable State law. (d) A claim for loss wholly compensated by an insurer with the rights of a subrogee may be presented by the insurer. A claim for loss partially compensated by an insurer with the rights of a subrogee may be presented by the parties individually as their respective interests appear, or jointly.



28 C.F.R. § 14.4 Administrative claims; evidence and information to be submitted. (a) Death. In support of a claim based on death, the claimant may be required to submit the following evidence or information:

(1) An authenticated death certificate or other competent evidence showing cause of death, date of death, and age of the decedent. (2) Decedent's employment or occupation at time of death, including his monthly or yearly salary or earnings (if any), and the duration of his last employment or occupation. (3) Full names, addresses, birth dates, kinship, and marital status of the decedent's survivors, including identification of those survivors who were dependent for support upon the decedent at the time of his death. (4) Degree of support afforded by the decedent to each survivor dependent upon him for support at the time of his death. (5) Decedent's general physical and mental condition before death. (6) Itemized bills for medical and burial expenses incurred by reason of the incident causing death, or itemized receipts of payment for such expenses. (7) If damages for pain and suffering prior to death are claimed, a physician's detailed statement specifying the injuries suffered, duration of pain and suffering, any drugs administered for pain, and the decedent's physical condition in the interval between injury and death. (8) Any other evidence or information which may have a bearing on either the responsibility of the United States for the death or the damages claimed.

(b) Personal injury. In support of a claim for personal injury, including pain and suffering, the claimant may be required to submit the following evidence or information:

(1) A written report by his attending physician or dentist setting forth the nature and extent of the injury, nature and extent of treatment, any degree of temporary or permanent disability, the prognosis, period of hospitalization, and any diminished earning capacity. In addition, the claimant may be required to submit to a physical or mental examination by a physician employed by the agency or another Federal agency. A copy of the report of the examining physician shall be made available to the claimant upon the claimant's written request provided that he has, upon request, furnished the report referred to in the first sentence of this paragraph and has made or agrees to make available to the agency any other physician's reports previously or thereafter made of the physical or mental condition which is the subject matter of his claim.



(2) Itemized bills for medical, dental, and hospital expenses incurred, or itemized receipts of payment for such expenses. (3) If the prognosis reveals the necessity for future treatment, a statement of expected expenses for such treatment. (4) If a claim is made for loss of time from employment, a written statement from his employer showing actual time lost from employment, whether he is a full or part-time employee, and wages or salary actually lost. (5) If a claim is made for loss of income and the claimant is self-employed, documentary evidence showing the amounts of earnings actually lost. (6) Any other evidence or information which may have a bearing on either the responsibility of the United States for the personal injury or the damages claimed.

(c) Property damage. In support of a claim for injury to or loss of property, real or personal, the claimant may be required to submit the following evidence or information:

(1) Proof of ownership. (2) A detailed statement of the amount claimed with respect to each item of property. (3) An itemized receipt of payment for necessary repairs or itemized written estimates of the cost of such repairs. (4) A statement listing date of purchase, purchase price and salvage value, where repair is not economical. (5) Any other evidence or information which may have a bearing on either the responsibility of the United States for the injury to or loss of property or the damages claimed.

28 C.F.R. § 14.5 Review by legal officers. The authority to adjust, determine, compromise, and settle a claim under the provisions of section 2672 of Title 28, United States Code, shall, if the amount of a proposed compromise, settlement, or award exceeds $5,000, be exercised by the head of an agency or his designee only after review by a legal officer of the agency.



28 C.F.R. § 14.6 Dispute resolution techniques and limitations on agency authority. (a) Guidance regarding dispute resolution. The administrative process established pursuant to 28 U.S.C. 2672 and this part 14 is intended to serve as an efficient effective forum for rapidly resolving tort claims with low costs to all participants. This guidance is provided to agencies to improve their use of this administrative process and to maximize the benefit achieved through application of prompt, fair, and efficient techniques that achieve an informal resolution of administrative tort claims without burdening claimants or the agency. This section provides guidance to agencies only and does not create or establish any right to enforce any provision of this part on behalf of any claimant against the United States, its agencies, its officers, or any other person. This section also does not require any agency to use any dispute resolution technique or process.

(1) Whenever feasible, administrative claims should be resolved through informal discussions, negotiations, and settlements rather than through the use of any formal or structured process. At the same time, agency personnel processing administrative tort claims should be trained in dispute resolution techniques and skills that can contribute to the prompt, fair, and efficient resolution of administrative claims. (2) An agency may resolve disputed factual questions regarding claims against the United States under the FTCA, including 28 U.S.C. 2671-2680, through the use of any alternative dispute resolution technique or process if the agency specifically agrees to employ the technique or process, and reserves to itself the discretion to accept or reject the determinations made through the use of such technique or process. (3) Alternative dispute resolution techniques or processes should not be adopted arbitrarily but rather should be based upon a determination that use of a particular technique is warranted in the context of a particular claim or claims, and that such use will materially contribute to the prompt, fair, and efficient resolution of the claims. If alternative dispute resolution techniques will not materially contribute to the prompt, fair, and efficient resolution of claims, the dispute resolution processes otherwise used pursuant to these regulations shall be the preferred means of seeking resolution of such claims.

(b) Alternative dispute resolution.

(1) Case-by-case. In order to use, and before using, any alternative dispute resolution technique or process to facilitate the prompt resolution of disputes that are in excess of the agency's delegated authority, an agency may use the following procedure to obtain written approval from the Attorney General, or his or her designee, to compromise a claim or series of related claims.



(i) A request for settlement authority under paragraph (b)(1) of this section shall be directed to the Director, Torts Branch, Civil Division, Department of Justice, ("Director") and shall contain information justifying the request, including:

(A) The basis for concluding that liability exists under the FTCA; (B) A description of the proposed alternative dispute resolution technique or process and a statement regarding why this proposed form of alternative dispute resolution is suitable for the claim or claims; (C) A statement reflecting the claimant's or claimants' consent to use of the proposed form of alternative dispute resolution, indicating the proportion of any additional cost to the United States from use of the proposed alternative dispute resolution technique or process that shall be borne by the claimant or claimants, and specifying the manner and timing of payment of that proportion to be borne by the claimant or claimants; (D) A statement of how the requested action would facilitate use of an alternative dispute resolution technique or process; (E) An explanation of the extent to which the decision rendered in the alternative dispute resolution proceeding would be made binding upon claimants; and, (F) An estimate of the potential range of possible settlements resulting from use of the proposed alternative dispute resolution technique.

(ii) The Director shall forward a request for expedited settlement action under paragraph (b)(1)(i) of this section, along with the Director's recommendation as to what action should be taken, to the Department of Justice official who has authority to authorize settlement of the claim or related claims. If that official approves the request, a written authorization shall be promptly forwarded to the requesting agency.

(2) Delegation of authority. Pursuant to, and within the limits of, 28 U.S.C. 2672, the head of an agency or his or her designee may request delegations of authority to make any award, compromise, or settlement without the prior written approval of the Attorney General or his or her designee in excess of the agency's authority. In considering whether to delegate authority pursuant to 28 U.S.C. 2672 in excess of previous authority conferred upon the agency, consideration shall be given to:



(i) The extent to which the agency has established an office whose responsibilities expressly include the administrative resolution of claims presented pursuant to the Federal Tort Claims Act; (ii) The agency's experience with the resolution of administrative claims presented pursuant to 28 U.S.C. 2672; (iii) The Department of Justice's experiences with regard to administrative resolution of tort claims arising out of the agency's activities.

(c) Monetary authority. An award, compromise, or settlement of a claim by an agency under 28 U.S.C. 2672, in excess of $25,000 or in excess of the authority delegated to the agency by the Attorney General pursuant to 28 U.S.C. 2672, whichever is greater, shall be effected only with the prior written approval of the Attorney General or his or her designee. For purposes of this paragraph, a principal claim and any derivative or subrogated claim shall be treated as a single claim. (d) Limitations on settlement authority—

(1) Policy. An administrative claim may be adjusted, determined, compromised, or settled by an agency under 28 U.S.C. 2672 only after consultation with the Department of Justice when, in the opinion of the agency:

(i) A new precedent or a new point of law is involved; or (ii) A question of policy is or may be involved; or (iii) The United States is or may be entitled to indemnity or contribution from a third party and the agency is unable to adjust the third party claim; or (iv) The compromise of a particular claim, as a practical matter, will or may control the disposition of a related claim in which the amount to be paid may exceed $25,000 or may exceed the authority delegated to the agency by the Attorney General pursuant to 28 U.S.C. 2672, whichever is greater.

(2) Litigation arising from the same incident. An administrative claim may be adjusted, determined, compromised, or settled by an agency under 28 U.S.C. 2672 only after consultation with the Department of Justice when the agency is informed or is otherwise aware that the United States or an employee, agent, or costplus contractor of the United States is involved in litigation based on a claim arising out of the same incident or transaction.



(e) Procedure. When Department of Justice approval or consultation is required, or the advice of the Department of Justice is otherwise to be requested, under this section, the written referral or request of the Federal agency shall be directed to the Director at any time after presentment of a claim to the Federal agency, and shall contain:

(1) A short and concise statement of the facts and of the reasons for the referral or request; (2) Copies of relevant portions of the agency's claim file; and (3) A statement of the recommendations or views of the agency.

28 C.F.R. § 14.7 [Reserved] 28 C.F.R. § 14.8 Investigation and examination. A Federal agency may request any other Federal agency to investigate a claim filed under section 2672, title 28, U.S. Code, or to conduct a physical examination of a claimant and provide a report of the physical examination. Compliance with such requests may be conditioned by a Federal agency upon reimbursement by the requesting agency of the expense of investigation or examination where reimbursement is authorized, as well as where it is required, by statute or regulation. 28 C.F.R. § 14.9 Final denial of claim. (a) Final denial of an administrative claim shall be in writing and sent to the claimant, his attorney, or legal representative by certified or registered mail. The notification of final denial may include a statement of the reasons for the denial and shall include a statement that, if the claimant is dissatisfied with the agency action, he may file suit in an appropriate U.S. District Court not later than 6 months after the date of mailing of the notification. (b) Prior to the commencement of suit and prior to the expiration of the 6- month period provided in 28 U.S.C. 2401(b), a claimant, his duly authorized agent, or legal representative, may file a written request with the agency for reconsideration of a final denial of a claim under paragraph (a) of this section. Upon the timely filing of a request for reconsideration the agency shall have 6 months from the date of filing in which to make a final disposition of the claim and the claimant's option under 28 U.S.C. 2675(a) shall not accrue until 6 months after the filing of a request for reconsideration. Final agency action on a request for reconsideration shall be effected in accordance with the provisions of paragraph (a) of this section.



28 C.F.R. § 14.10 Action on approved claims. (a) Any award, compromise, or settlement in an amount of $2,500 or less made pursuant to 28 U.S.C. 2672 shall be paid by the head of the Federal agency concerned out of the appropriations available to that agency. Payment of an award, compromise, or settlement in excess of $2,500 shall be obtained by the agency by forwarding Standard Form 1145 to the Claims Division, General Accounting Office. When an award is in excess of $25,000, or in excess of the authority delegated to the agency by the Attorney General pursuant to 28 U.S.C. 2672, whichever is greater, Standard Form 1145 must be accompanied by evidence that the award, compromise, or settlement has been approved by the Attorney General or his designee. When the use of Standard Form 1145 is required, it shall be executed by the claimant, or it shall be accompanied by either a claims settlement agreement or a Standard Form 95 executed by the claimant. When a claimant is represented by an attorney, the voucher for payment shall designate both the claimant and his attorney as payees; the check shall be delivered to the attorney, whose address shall appear on the voucher. (b) Acceptance by the claimant, his agent, or legal representative, of any award, compromise or settlement made pursuant to the provisions of section 2672 or 2677 of Title 28, United States Code, shall be final and conclusive on the claimant, his agent or legal representative and any other person on whose behalf or for whose benefit the claim has been presented, and shall constitute a complete release of any claim against the United States and against any employee of the Government whose act or omission gave rise to the claim, by reason of the same subject matter. 28 C.F.R. § 14.11 Supplementing regulations. Each agency is authorized to issue regulations and establish procedures consistent with the regulations in this part.



STANDARD FORM 9515

15 An electronic copy can be found at http://www.usdoj.gov/civil/docs_forms/SF-95.pdf.



ATTORNEY AUTHORIZATION



ATTORNEY AUTHORIZATION

TO: Relevant Agency

Address

I, _________________________________, hereby designate and authorize

_________________________________, an attorney associated with the law office of

_________________________________, to represent me and continue any and all

claims and/or actions which have been filed or will be filed arising from an incident

which occurred on _________________________________, as described with more

specificity as follows: ____________________________________________________

______________________________________________________________________

______________________________________________________________________

_____________________________________________________________________.

Executed this ____ day of _____________________, 20___.

________________________________

Signature of Claimant

Sworn to before me this ____ day

of __________________, 20____.

_______________________________

Notary Public



ACKNOWLEDGMENT AND REQUEST FOR ADDITIONAL INFORMATION



FORMAL DENIAL



U.S. GOVERNMENT DEPARTMENTS AND AGENCIES16

16 Website links to each of the nearly 500 United States government departments and agencies set forth on pages 91 to 102, infra, can be found at: www.usa.gov/directory/federal/index.shtml.



U.S. Departments and Agencies:

Access Board Administration for Children and Families (ACF) Administration for Native Americans Administration on Aging (AoA) Administration on Developmental Disabilities Administrative Committee of the Federal Register Administrative Conference of the United States Administrative Office of the U.S. Courts Advisory Council on Historic Preservation African Development Foundation Agency for Healthcare Research and Quality (AHRQ) Agency for International Development Agency for Toxic Substances and Disease Registry Agricultural Marketing Service Agricultural Research Service Agriculture Department Air and Radiation Hotline Air Force Alcohol and Tobacco Tax and Trade Bureau (Treasury) Alcohol, Tobacco, Firearms, and Explosives Bureau (Justice) American Battle Monuments Commission AmeriCorps Recruiting AMTRAK (National Railroad Passenger Corporation) Animal and Plant Health Inspection Service Antitrust Division Appalachian Regional Commission Architect of the Capitol Archives (National Archives and Records Administration) Arctic Research Commission Armed Forces Retirement Home Arms Control and International Security Army Army Corps of Engineers Arthritis and Musculoskeletal Interagency Coordinating Committee Atlantic Fleet Forces Command Bankruptcy Courts Barry M. Goldwater Scholarship and Excellence in Education Foundation Bonneville Power Administration Botanic Garden Broadcasting Board of Governors (Voice of America, Radio|TV Marti and more) Bureau of Alcohol and Tobacco Tax and Trade (Treasury)



Bureau of Alcohol, Tobacco, Firearms, and Explosives (Justice) Bureau of Citizenship and Immigration Services (USCIS) Bureau of Consumer Financial Protection Bureau of Economic Analysis (BEA) Bureau of Indian Affairs (BIA) Bureau of Industry and Security Bureau of International Labor Affairs Bureau of Justice Statistics Bureau of Labor Statistics Bureau of Land Management (BLM) Bureau of Prisons Bureau of Reclamation Bureau of the Census Bureau of the Engraving and Printing Bureau of the Public Debt Bureau of Transportation Statistics Capitol Visitor Center Census Bureau Center for Food Safety and Applied Nutrition Centers for Disease Control and Prevention (CDC) Centers for Medicare & Medicaid Services (CMS) Central Command (CENTCOM) Central Intelligence Agency (CIA) Chemical Safety and Hazard Investigation Board Chief Acquisition Officers Council Chief Financial Officers Council Chief Human Capital Officers Council Chief Information Officers Council Citizens' Stamp Advisory Committee Citizenship and Immigration Services (USCIS) Civilian Radioactive Waste Management Coast Guard Commerce Department Commission on Civil Rights Commission on Fine Arts Commission on International Religious Freedom Commission on Security and Cooperation in Europe (Helsinki Commission) Committee for Purchase from People Who Are Blind or Severely Disabled Committee for the Implementation of Textile Agreements Committee on Foreign Investment in the United States Community Oriented Policing Services (COPS) Community Planning and Development Compliance, Office of Computer Emergency Readiness Team (US CERT)



Congressional Budget Office (CBO) Congressional Research Service Constitution Center Consumer Financial Protection Bureau Consumer Product Safety Commission (CPSC) Coordinating Council on Juvenile Justice and Delinquency Prevention Copyright Office Corporation for National and Community Service Corps of Engineers Council of Economic Advisers Council on Environmental Quality Court of Appeals for the Armed Forces Court of Appeals for the Federal Circuit Court of Appeals for Veterans Claims Court of Federal Claims Court of International Trade Court Services and Offender Supervision Agency for the District of Columbia Defense Acquisition University Defense Advanced Research Projects Agency (DARPA) Defense Commissary Agency Defense Contract Audit Agency (DCAA) Defense Contract Management Agency Defense Field Activities Defense Finance and Accounting Services (DFAS) Defense Information Systems Agency (DISA) Defense Intelligence Agency (DIA) Defense Legal Services Agency Defense Logistics Agency (DLA) Defense Nuclear Facilities Safety Board Defense Security Cooperation Agency (DSCA) Defense Security Service (DSS) Defense Technical Information Center Defense Threat Reduction Agency (DTRA) Delaware River Basin Commission Denali Commission Department of Agriculture (USDA) Department of Commerce (DOC) Department of Defense (DOD) Department of Defense Inspector General Department of Education (ED) Department of Energy (DOE) Department of Health and Human Services (HHS) Department of Homeland Security (DHS) Department of Housing and Urban Development (HUD)



Department of Justice (DOJ) Department of Labor (DOL) Department of State (DOS) Department of the Interior (DOI) Department of the Treasury Department of Transportation (DOT) Department of Veterans Affairs (VA) Director of National Intelligence, Office of Domestic Policy Council Drug Enforcement Administration Economic Adjustment Office Economic Analysis, Bureau of Economic Development Administration Economic Research Service Economic, Business and Agricultural Affairs Economics and Statistics Administration Education Department Election Assistance Commission Elementary and Secondary Education, Office of Employee Benefits Security Administration (EBSA) Employment and Training Administration Endangered Species Committee Energy Department Energy Information Administration English Language Acquisition Office Engraving and Printing, Bureau of Environmental Management (Energy Department) Environmental Protection Agency (EPA) Equal Employment Opportunity Commission (EEOC) European Command Executive Office for Immigration Review Export-Import Bank of the United States Fair Housing and Equal Opportunity (FHEO) Farm Credit Administration Farm Service Agency Federal Accounting Standards Advisory Board Federal Aviation Administration (FAA) Federal Bureau of Investigation (FBI) Federal Bureau of Prisons Federal Communications Commission (FCC) Federal Consulting Group Federal Deposit Insurance Corporation (FDIC) Federal Election Commission Federal Emergency Management Agency (FEMA)



Federal Energy Regulatory Commission Federal Executive Boards Federal Financial Institutions Examination Council Federal Financing Bank Federal Geographic Data Committee Federal Highway Administration Federal Home Loan Mortgage Corporation (Freddie Mac) Federal Housing Finance Agency Federal Interagency Committee for the Management of Noxious & Exotic Weeds Federal Interagency Committee on Education Federal Interagency Council on Statistical Policy Federal Judicial Center Federal Labor Relations Authority Federal Laboratory Consortium for Technology Transfer Federal Law Enforcement Training Center Federal Library and Information Center Committee Federal Maritime Commission Federal Mediation and Conciliation Service Federal Mine Safety and Health Review Commission Federal Motor Carrier Safety Administration (FMCSA) Federal National Mortgage Association (Fannie Mae) Federal Railroad Administration Federal Reserve System Federal Retirement Thrift Investment Board Federal Student Aid Information Center Federal Trade Commission (FTC) Federal Transit Administration Financial Management Service (Treasury Department) Fiscal Responsibility and Reform, National Commission Fish and Wildlife Service Food and Drug Administration (FDA) Food Safety and Inspection Service Foreign Agricultural Service Foreign Claims Settlement Commission Forest Service Fossil Energy Fulbright Foreign Scholarship Board General Services Administration (GSA) Geological Survey Global Affairs (State Department) Government Accountability Office (GAO) Government Ethics, Office of Government National Mortgage Association Government Printing Office (GPO)



Grain Inspection, Packers and Stockyards Administration Harry S. Truman Scholarship Foundation Health and Human Services Department Health Resources and Services Administration Healthy Homes and Lead Hazard Control Office Helsinki Commission (Commission on Security and Cooperation in Europe) Holocaust Memorial Museum Homeland Security Department House Leadership Offices House of Representatives House of Representatives Committees House Office of Inspector General House Office of the Clerk House Organizations, Commissions, and Task Forces Housing Office (HUD) Illinois and Michigan Canal National Heritage Corridor Commission Immigration and Customs Enforcement Indian Affairs, Bureau of Indian Arts and Crafts Board Indian Health Service Industrial College of the Armed Forces Industry and Security, Bureau of Information Resource Management College Information Resources Center Innovation and Improvement Office Inspectors General Institute of Education Sciences Institute of Museum and Library Services Institute of Peace Inter-American Foundation Interagency Alternative Dispute Resolution Working Group Interagency Council on Homelessness Interior Department Internal Revenue Service (IRS) International Labor Affairs, Bureau of International Trade Administration (ITA) International Trade Commission Interpol James Madison Memorial Fellowship Foundation Japan-United States Friendship Commission Job Corps John F. Kennedy Center for the Performing Arts Joint Board for the Enrollment of Actuaries Joint Chiefs of Staff



Joint Congressional Committee on Inaugural Ceremonies Joint Fire Science Program Joint Forces Command Joint Forces Staff College Joint Military Intelligence College Judicial Circuit Courts of Appeal Judicial Panel on Multidistrict Litigation Justice Department Justice Programs, Office of Justice Statistics, Bureau of Juvenile Justice and Delinquency Prevention, Office of Labor Department (DOL) Labor Statistics, Bureau of Land Management, Bureau of Legal Services Corporation Library of Congress Marine Corps Marine Mammal Commission Maritime Administration Marketing and Regulatory Programs (Agriculture Department) Marshals Service Mediation and Concitiation Service, Office of Medicaid and CHIP Payment and Access Commission Medicare Payment Advisory Commission Merit Systems Protection Board Migratory Bird Conservation Commission Military Postal Service Agency Millennium Challenge Corporation Mine Safety and Health Administration Minority Business Development Agency Mint Missile Defense Agency (MDA) Mississippi River Commission Morris K. Udall and Stewart L. Udall Foundation Multifamily Housing Office National Aeronautics and Space Administration (NASA) National Agricultural Statistics Service National AIDS Policy Office National Archives and Records Administration (NARA) National Bipartisan Commission on the Future of Medicare National Capital Planning Commission National Cemetery Administration (NCA) National Commission on Fiscal Responsibility and Reform National Constitution Center



National Council on Disability (NCD) National Counterintelligence Executive, Office of National Credit Union Administration National Defense University National Drug Intelligence Center National Economic Council National Endowment for the Arts National Endowment for the Humanities National Gallery of Art National Geospatial-Intelligence Agency National Guard National Highway Traffic Safety Administration (NHTSA) National Indian Gaming Commission National Institute of Food and Agriculture National Institute of Justice National Institute of Standards and Technology (NIST) National Institutes of Health (NIH) National Interagency Fire Center National Labor Relations Board National Laboratories (Energy Department) National Marine Fisheries Service National Mediation Board National Nuclear Security Administration National Ocean Service National Oceanic and Atmospheric Administration (NOAA) National Park Foundation National Park Service National Railroad Passenger Corporation (AMTRAK) National Reconnaissance Office National Science Foundation National Security Agency (NSA) National Security Council National Technical Information Service National Telecommunications and Information Administration National Transportation Safety Board National War College National Weather Service (NOAA) Natural Resources Conservation Service Navy Northern Command Northwest Power Planning Council Nuclear Energy, Science and Technology Nuclear Regulatory Commission Nuclear Waste Technical Review Board



Oak Ridge National Laboratory Occupational Safety and Health Review Commission Office for Civil Rights, Department of Education Office of Compliance Office of Disability Employment Policy Office of Elementary and Secondary Education (OESE) Office of Government Ethics Office of Juvenile Justice and Delinquency Prevention Office of Management and Budget (OMB) Office of Mediation and Concitiation Service Office of National Drug Control Policy (ONDCP) Office of Personnel Management (OPM) Office of Refugee Resettlement Office of Science and Technology Policy Office of Scientific and Technical Information Office of Special Counsel Office of the Comptroller of the Currency (OCC) Office of the Director of National Intelligence Office of the Pardon Attorney Office of Thrift Supervision (OTS) Open World Leadership Center Overseas Private Investment Corporation Pacific Command Pardon Attorney, Office of Parole Commission (Justice Department) Peace Corps Pension Benefit Guaranty Corporation (PBGC) Pentagon Force Protection Agency Pipeline and Hazardous Materials Safety Administration Policy Development and Research Political Affairs (State Department) Postal Regulatory Commission Postal Service Power Administrations President's Council on Physical Fitness and Sports Presidio Trust Prisoner of War/Missing Personnel Office Public and Indian Housing Public Diplomacy and Public Affairs (State Department) Radio and TV Marti (Español) Radio Free Asia (RFA) Radio Free Europe/Radio Liberty (RFE/RL) Railroad Retirement Board (RRB) Reclamation, Bureau of



Refugee Resettlement, Office of Regulatory Information Service Center Rehabilitation Services Administration (Education Department) Research and Innovative Technology Administration Research, Education and Economics (Agriculture Department) Risk Management Agency (Agriculture Department) Rural Business and Cooperative Programs Rural Development Rural Housing Service Rural Utilities Service Saint Lawrence Seaway Development Corporation Science and Technology Policy, Office of Science Office (Energy Department) Scientific and Technical Information, Office of Secret Service Securities and Exchange Commission (SEC) Selective Service System (SSS) Senate Senate Committees Senate Leadership Senators on the Web Small Business Administration (SBA) Smithsonian Institution Social Security Administration (SSA) Social Security Advisory Board Southeastern Power Administration Southern Command Southwestern Power Administration Special Forces Operations Command State Department State Justice Institute Stennis Center for Public Service Strategic Command Substance Abuse and Mental Health Services Administration Supreme Court of the United States Surface Mining, Reclamation and Enforcement Surface Transportation Board Susquehanna River Basin Commission Tax Court Taxpayer Advocacy Panel Tennessee Valley Authority Trade and Development Agency Transportation Command Transportation Department



Transportation Security Administration (TSA) Transportation Statistics, Bureau of Treasury Department TRICARE Management Trustee Program (Justice Department) U.S. AbilityOne Commission U.S. Access Board U.S. Capitol Visitor Center U.S. Citizenship and Immigration Services U.S. Coast Guard U.S. Commodity Futures Trading Commission (CFTC) U.S. Election Assistance Commission (EAC) U.S. Geological Survey (USGS) U.S. Immigration and Customs Enforcement U.S. International Trade Commission U.S. Military Academy, West Point U.S. Mission to the United Nations U.S. National Central Bureau - Interpol (Justice Department) U.S. Patent and Trademark Office U.S. Postal Service (USPS) U.S. Sentencing Commission U.S. Trade and Development Agency U.S. Trade Representative Unified Combatant Commands (Defense Department) Uniformed Services University of the Health Sciences United States Mint Veterans Affairs Department (VA) Veterans Benefits Administration Veterans Day National Committee Veterans' Employment and Training Service Vietnam Educational Foundation Voice of America (VOA) Washington Headquarters Services Weather Service West Point (Army) Western Area Power Administration White House White House Commission on Presidential Scholars White House Commission on the National Moment of Remembrance White House Office of Administration Women's Bureau (Labor Department) Woodrow Wilson International Center for Scholars



About the Author

Michael Anthony Bottar is a member of Bottar Leone, PLLC, a Syracuse-based law firm established in 1983. Mike’s trial practice is limited to the prosecution of medical malpractice, wrongful death, workplace accident, and complex personal injury actions in all New York State and Federal courts, with an emphasis on claims involving birth injuries, governmental negligence, and biomedical product liability.

Mike is a graduate of Colgate University and a summa cum laude graduate of Syracuse University College of Law, where he has served as an adjunct professor since 2010, has authored the Civil Practice chapter of the Syracuse Law Review’s Survey of New York Law since 2009, and is a member of the law school’s Board of Advisors.

Mike is AV™ rated by Martindale-Hubbell. He is listed in The Best Lawyers In America® for medical malpractice, product liability and personal injury, and is listed in New York Super Lawyers (Upstate). Mike has been repeatedly recognized as one of New York’s “top 10 under 40” by the National Academy of Personal Injury Attorneys, and as one of New York’s “top 40 under 40” and “top 100” by The National Trial Lawyers and the American Society of Legal Advocates. He is a life member of the Multi-Million Dollar Advocates Forum®.

Mike is a member of the board of directors of the New York State Academy of Trial Lawyers. He is also a member of the Onondaga County Bar Association, New York State Bar Association, Northern District of New York Federal Court Bar Association, American Bar Association, and the American Association for Justice.

Mike is a past member and executive editor of the Syracuse Law Review, which published his note: "Robbing Peter To Pay Paul: Medicaid Liens, Supplemental Needs Trusts and Personal Injury Recoveries on Behalf of Infants In New York State Following the Gold Decision." Mike’s note has been cited by the Practicing Law Institute (twice), American Jurisprudence Proof of Facts, and the American Bar Association's Real Property Trusts and Estates Law Journal. Mike is a past member of the Syracuse University College of Law Moot Court Honor Society, and was inducted into the Order of the Coif, the Order of Barristers and the Justinian Honorary Law Society.

Mike began his legal career as a litigation associate with the New York City office of White & Case, LLP, with professional highlights including representing a French bank on trial in the United States District Court for the Northern District of California, and conducting depositions and internal investigations in Buenos Aires, Brussels, Paris, Hong Kong and Shanghai. Immediately prior to joining Bottar Leone, PLLC, Mike was a litigation associate with the Syracuse office of Bond, Schoeneck & King, PLLC.

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